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JUDICIAL REGISTER: Ex-Judicial Investigator responds to top judge’s claims a register of judges’ interests may affect judicial recruitment – “If a lawyer were put off by having to be open and transparent it does raise questions about their suitability to be members of the judiciary”

Justice Committee heard evidence from Moi Ali. CLAIMS by Scotland’s top judge that introducing a register of judges’ interests may impact on judicial recruitment were brushed aside at Holyrood’s Justice Committee earlier this week – during an evidence session with former Judicial Complaints Reviewer Moi Ali.

Answering a question from MSP Shona Robinson on concerns raised by Lord Carloway of difficulties in hiring judges – Moi Ali said: “If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary.”

The response from Moi Ali, who served as Scotland’s first Judicial Complaints Reviewer (JCR) – was a key moment during Tuesday’s hearing where the Scottish Parliament’s Justice Committee took further evidence on a petition calling for the creation of a register of interests for judges: Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally filed at Holyrood’s Public Petitions Committee in October 2012.

The petition 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.

Video footage of Moi Ali’s respnse to MSP Shona Robison can be viewed here:

Moi Ali – Judicial interests register will not deter judicial candidates – Justice Committee 19 November 2019

Shona Robison (Dundee City East) (SNP): Good morning. Lord Carloway said in his written evidence that a register of financial interests could “have a damaging effect on judicial recruitment.”

It is not necessarily the case that anyone would have anything to hide, but there may be such a perception as a result of the extended scrutiny. Would a register of interests have a negative effect on judicial recruitment in any way?

Moi Ali: I honestly do not think that it would. If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary. If the need for transparency put people off, that might not be a bad thing because they might not be the sort of people whom we want to be sitting in judgment.

By and large, a requirement to register interests does not put large numbers of people off wanting to sit on public boards or build a career in politics. It has not deterred me or any of you—we are all here today, and we all publish declarations in a register of interests.

I do not agree, therefore, that it necessarily follows that people would be put off becoming judges. People do that job because it is a public service and a very worthwhile thing to do. I would hope that the sort of people who want to do that job would want to do it in an open and transparent way.

Earlier in August 2019, Scotland’s top judge Lord Carloway (real name Colin John Maclean Sutherland) – wrote a letter to the Justice Committee claiming that raising the issue of judges declaring their interests may impact on his recruitment of judges for the Court of Session and High Court of Justiciary.

Carloway, who earns £234K a year – also refused to give evidence at the Justice Committe, and demanded to know of questions in advance should he have to address further queries from MSPs who have been considering the cross party backed petition calling for a register of judicial interests since it was passed to them by the Public Petitions Committee in May 2018, reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

Lord Carloway’s letter to Margaret Mitchell MSP stated “I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.”

Carloway ended his letter by stating “I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”

The evidence hearing before the Justice Committee lasted some fifty minutes, covering a host of issues ranging from how a register of judges’ interests would benefit the judiciary and enhance public confidence in the courts system, to answering the concerns of judges who feel their privacy should be protected more so than any other organisation or branch of the executive.

This is the second time Moi Ali  – who is now the Independent Assessor of Complaints for the Crown Prosecution Service in England – has given evidence to MSPs on the long running Holyrood probe of judicial transparency and declarations of judges’ interests.

Earlier, in September 2013, Moi Ali gave evidence to the Scottish Parliament’s Public Petitions Committee, and gave her backing to calls for the creation of a register of judicial interests.– reported in more detail along with video footage of the 2013 evidence hearing, here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Video footage of the Justice Committee’s 19 November 2019 hearing where Moi Ali gave evidence on Petition PE1458 can be viewed here:

Moi Ali – Register of Judges Interests evidence hearing Scottish Parliament 19 November 2019

The full transcript of the hearing is reprinted below:

Judiciary (Register of Interests) (PE1458) Justice Committee 19 November 2019

The Convener (Margaret Mitchell (Central Scotland) (Con): Agenda item 2 is an evidence session on petition PE1458, in the name of Peter Cherbi, calling on the Parliament to establish a register of judicial interests. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome our witness, Moi Ali, who is a former Judicial Complaints Reviewer. Regrettably, Peter Cherbi is unable to be here this morning. I wish him a speedy recovery.

I refer members to the recent letter on the petition that the committee received from the Lord President.

We move to questions from members.

John Finnie (Highlands and Islands) (Green): Good morning, Ms Ali. Thank you for your written submission.

Will you outline the nature of the problem? Is the problem actual or does it involve perceived bias?

Moi Ali: The short answer is that it is a mix of both. Without a register of interests, it is extremely difficult for people to work out whether there is an issue.

I acknowledge that there are perceived concerns, but that is an issue in itself. For example, there are no real issues about public board members getting involved in deals that they should not get involved in—I believe that there is no evidence of that happening—but we are still required to complete our entries in a register of interests, as are MSPs.

In a way, the issue is not whether there is any real bias, although I have been sent evidence that there is. For me, the issue is one of perception, and having confidence in the judicial system is important. We want justice delivered, but we also want justice to be seen to be delivered, which is very much about openness and transparency.

John Finnie: You are a former Judicial Complaints Reviewer. Can you give us an outline of the sort of complaints that you dealt with, and tell us whether they would inform this debate?

Moi Ali: Yes, I can. The difficulty that I had as the JCR was that people tended not to escalate complaints to me, because it was known that I had no powers and that there was nothing that I could do.

The complaints system is such that judges investigate complaints about judges and, at the end of that process, there is what can only be described as a little bit of window dressing. The final stage is with somebody called a JCR, which is set out in statute. That individual has no powers, so they cannot change or overturn a decision and cannot do anything about it at all. Their only power is to look at whether the complaints process was followed. The complaints process is simply about matters such as whether the person who was complained about wrote to the complainant within the five-day timescale or whether they sent a response within 10 days. The JCR does not look in detail at the complaint; rather, they simply look at whether the process was followed. That is very different from the system in England and Wales.

John Finnie: What sort of complaints did you deal with in that way?

Moi Ali: The complaints were about a wide range of issues from judicial conduct in the private world—the way in which judicial office-holders conducted themselves when not acting as, for example, judges—to things that happened in the courtroom, such as issues with their behaviour, rudeness, unsympathetic approaches or, sometimes, conflicts of interest.

John Finnie: Is there anything that we can learn from elsewhere? The petitioner has indicated that judicial registers operate successfully elsewhere and gives the example of Norway, which is often used as a comparator for Scotland. Are you aware of that system?

Moi Ali: I am not. I have to say that I am not an expert in registers of interest for the judiciary but I am passionate about openness and transparency in public life. For me, that is the fundamental issue. In many ways, this is not about a register of interests but about public office-holders in various guises, whether it is people like you in politics, people like me on boards and in public life or judges taking decisions about people’s lives. Is there a requirement on people who represent wider society to be open and transparent in our dealings? For me, there is a very clear answer: yes, we have to be open and transparent.

John Finnie: Okay, thank you.

The Convener: I would like to follow up on the point about having no powers other than to look at the process and see that it is being followed. What powers do you suggest that the JCR should have?

Moi Ali: A good example is the role that I have at the moment. I am the independent assessor of complaints for the Crown Prosecution Service in England and Wales. In a way, it is a similar job, in that I independently review complaints. The difference is that, when I was the JCR, I simply considered the process, whereas now I can overturn a decision and reach a different decision about the outcome of a complaint. I believe strongly that the JCR ought to be able to do that.

What I found frustrating as the JCR was that if, based on the evidence, I could not understand how a particular decision had been reached, I had no power to say, “That is nonsensical; it needs to be looked at again”. I could say only, “Well, you followed the rules, therefore I do not uphold the complaint”.

I think that the JCR ought to have the power to consider the complaint, reach a different outcome and have a conversation with the Lord President about what can be done to remedy that complaint, instead of simply ruling on whether the process was followed or not.

The Convener: When you say, “overturn a decision”, do you mean the decision of a case where there might be an appeal pending?

Moi Ali: No. It is important that there is a distinction between legal decisions that judges make—clearly, we have to have an independent judiciary, and nobody should get involved in overturning legal decisions—and service elements. So, for example, if a judge is rude to somebody in court, that is not a legal decision, that is a service decision. I do not believe that any non-judicial office-holder ought to overturn legal decisions. However, if, after considering the evidence in a case, the JCR cannot understand why judges have not upheld a service complaint, he or she ought to have the power to ask the Lord President to consider that complaint again. Of course, though, they should certainly not look at legal decision making in that way.

The Convener: So, you are saying that, if the JCR is considering a complaint—one that might involve something about rudeness, or something that happened in the court that was not quite right—and the judiciary has, in effect, said, “We are not going to do anything about it”, you feel that the JCR should have the power to say, “No, I think this is a legitimate claim” and ask for it to be looked at again?

Moi Ali: Yes, otherwise what is the point of having a JCR? What is the point of having a third tier when the third tier cannot actually do anything? That is why I describe it as window dressing: if you can look at a complaint but you cannot do anything about it, why look at it?

The Convener: That is a helpful clarification.

James Kelly (Glasgow) (Lab): I draw the committee’s attention to my previously declared interest, which is that my brother, Tony Kelly, is a sheriff within the sheriffdom of Glasgow and Strathkelvin.

I would like to follow on from what has just been discussed and give a bit more context to the issue of service complaints. You gave the example of a judge being rude. Can you give any other examples of what would merit a service complaint?

Moi Ali: Let me think. It could be behaviour outside the courtroom. I vaguely remember a complaint where somebody was shouted at by a judge while she was out walking her dog—she was in an isolated place and she felt afraid. I also vaguely remember—you will have to forgive me; it was several years ago that I was the JCR—a complaint where somebody felt that they had been a victim of disability discrimination as their requirements had not been taken on board when they gave evidence in court.

Those are some examples, but it covers a wide range of things. Really, any concern that somebody has that is not a legal concern about their case is a service complaint. It could be to do with the conduct of a judge. If somebody feels that a judge gave one witness more airtime than another, that would be a legal complaint, because it is up to judges to decide how to handle evidence in court. However, if somebody feels that a judge was rude to them but perfectly polite to somebody else, that would be a service complaint.

It is quite difficult to give examples because cases are so varied.

James Kelly: Does a service complaint pertain to a specific legal case or can it relate to a judge’s general conduct? You gave the example of something that happens outside the courtroom.

Moi Ali: It can relate to general conduct inside or outside the courtroom. It can be about a specific instance or it can be more general. For example, there could be a concern about bias because a judge is a member of a particular society. It covers a wide range of things.

James Kelly: Okay. I suppose the key questions that the petition raises are whether there is a risk of bias in the judicial system and whether the safeguards in the system are adequate. Those safeguards are: the judicial oath; the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”; and the powers to investigate judges. How effective are they in ensuring that there is no bias in the system and that no conflict of interest arises?

Moi Ali: I will pick up on the third of those things, because my field of expertise is the complaints process, and that is where my concerns lie. We have a system in which, if there is a complaint about a judge, it is investigated by another judge. We live in a small country and we have a small group of judges who are all known to one other. It is quite a difficult scenario when people have to investigate people that they know. Given that the oversight role of the JCR is a powerless one, I do not think that we have a robust complaints system, and therein lies the problem.

Over and above all of that, however, even if we had a really good, robust system for investigating complaints that had genuine independent oversight, there would still be a requirement for a register of interests. This is the 21st century. Since the 20th century, public board members and politicians have had to register interests, and it is normal, commonplace practice. I cannot understand why we do not require one certain group of people who take very important decisions to do that.

James Kelly: You believe that, because judges are allowed to investigate within their own pool, the process is weak and is not fair or transparent. Do you have any evidence or examples to back that up?

Moi Ali: Their findings are not seen outwith their small circle. While I was the JCR, I was also involved in the system in England and Wales. As the JCR, I did not see the outcome of complaints unless they came to me, whereas I found that, when people challenged decisions in England and Wales, there was genuine independent oversight. There, a panel of people consider the complaint and can overturn the finding or impose a more serious sanction, which has to be accepted by the judiciary. In addition, the findings of investigations are published on a website. It is a bit like the situation with complaints about other professional groups such as doctors, nurses, surveyors and solicitors—in those cases, findings are publicly available and people can see the outcomes. In Scotland, that does not happen with complaints about the judiciary. You cannot look at how many complaints there have been and what the outcome was for particular judicial office-holders. That simply does not happen here, but it happens elsewhere.

Liam McArthur (Orkney Islands) (LD): Ms Ali, you have set out the case for a register of interests. Of course, the petition has already secured the achievement of a register of recusals. What transparency benefits has that register brought to the system, and what is the rationale for going beyond that and having a register of interests? What would a register of interests give you that the register of recusals will never be able to give you, however well it operates?

Moi Ali: The register of recusals is welcome because it is a step forward and probably would not have happened if it had not been for the petition. There are concerns about it, though. For example, as I understand it, there are no justices of the peace on the list. I found that surprising, given that JPs have another life and lots of contacts in their other life, and in their day job and so on. It is surprising that there have been no recusals there.

For me, the more fundamental issue is that it is up to the judicial office-holder to take the decision. They know what their own interests are, and nobody else has that knowledge. They decide on a case-by-case basis, and if they do not recuse themselves, the people before them do not have the information to challenge them, whereas, if there was a register of interests, the process could be more proactive. People could look at the register, then go to court and say, “Sorry, but I think there’s a conflict of interest here. I’ve consulted the register of interests and you have a connection with this or that, and that concerns me.” With the register of recusals, it is up to the judicial office-holder to decide whether there is a conflict of interest, which takes the power out of the hands of the people who appear before the judiciary. I suppose that that is my concern.

I sound a bit like a stuck record, but there is a fundamental principle about openness and transparency that I feel should extend throughout society and public life. Even if the register of recusals worked—I am not convinced that it does—there is still a need for a register of interests.

Liam McArthur: With both the register of interests and the register of recusals, would there not be the same issue of reliance on the individual either to recuse themselves or register their interests? With a register of interests, we would therefore not necessarily find ourselves much further forward.

Moi Ali: I think that we would, because, if clear criteria were set out, and there were clear requirements for what needed to be registered and what did not, judicial office-holders could meet those requirements and register their interests, and that information would then be in the hands of everyone. Anyone could use that information to challenge whether there was an interest in a case. Without a register of interests, we are relying solely on the judicial office-holder to take that decision, and the people appearing before that person do not have that knowledge to make that challenge.

A register of interests would be a step forward because it would be about sharing information that, at the moment, only the judicial office-holder knows. It might be that they feel that they do not have an interest, but somebody else, if they had that information, might feel that they did. At least we could have an open and transparent discussion about it and resolve it before the case. What we do not want is for people to turn up on the day and find that the judicial office-holder, having looked at the papers for that day, has concerns that they might have an interest. By having those interests publicly declared and available in advance, a lot of that work can be done in advance. I cannot see any disadvantage to such a register; I can see only advantage.

Liam McArthur: There would still be an issue around whether a recusal is appropriate, and one can certainly envisage circumstances in which there could be a difference of opinion about whether an interest merited recusal in a particular case. Ultimately, the decision will have to be taken by somebody, but should it be taken by judges, by individual sheriffs or by the Lord President? Is there a mechanism for arbitrating the matter, or will the decision still rest, as it does at the moment, with individual judges and sheriffs?

Moi Ali: Goodness—you are asking me very detailed questions on issues that I think need to be looked at down the line. The first issue is whether the principle is that people ought to register their interests. If so, let us then look at the detail of how that might work. Of course, there will be scenarios in which one party feels that there is an interest and the judicial office-holder feels that there is not but, if there is a register, there can at least be a discussion. At the moment, that discussion is not even happening, because it is purely for the judicial office-holder to decide and to recuse, without there being an opportunity to discuss or challenge that decision.

Personally, I do not have an issue with the judicial office-holder taking the decision, but it must be taken openly and transparently, and there must be an opportunity for challenge before a case goes ahead.

Liam McArthur: There could be a concern that individuals might see an opportunity to challenge the validity of a judge or sheriff presiding over a case, irrespective of the circumstances of their case, because there would be two separate processes running in parallel. I am sure that there are wider arguments, but there might be a concern that we would have a register that opens up a line of attack on members of the judiciary, which could distract from the facts and circumstances of individual cases.

Moi Ali: I will give you an example of a similar situation. For many years, I sat as the chair of disciplinary panels for nurses and midwives, and similar issues came up then. Some of the panel members would know people from a particular health board or health trust, and they would have to declare that openly in a hearing and set out what they believed that their interest was. The declaration could be challenged and, ultimately, the panel that was sitting on the case would decide whether there was an interest. If the “defendant”—in inverted commas—felt that there was an interest, they could have the decision judicially reviewed. In practice, the process was straightforward: somebody would declare an interest and there would be a discussion about whether it was a material interest. In probably all cases, a view was reached about whether there was a material interest, and the case would either go ahead or be assigned to a different panel on another day. However, the process did not seem to pose a particular problem, so I cannot see that it would not work in practice. There might be challenges but, if we had rules that set out what would happen if there was a challenge, there is no reason why there should be any particular difficulties.

Rona Mackay (Strathkelvin and Bearsden) (SNP): I will you ask a bit more about judicial independence. The Lord President and the Scottish Government argue that judges should not be treated in the same way as other branches of Government, because they have an independent role that is protected in statute. You have said that you believe in judicial independence, so do you think that a register could compromise that?

Moi Ali: No, I do not. Judicial independence and judicial accountability are both absolutely essential to a democratic society, but there is a clear distinction between the two and they are very different. I would not want to live in a society in which politicians, for example, interfere in judicial decisions. That is why we have an independent judiciary and we should all make sure that that independence is maintained.

Accountability is a different matter altogether. Being accountable for fair decisions is important and demonstrating that you are impartial is an important part of accountability. We want impartial judges, but we also want judges who can demonstrate that they are impartial. To me, a register of interests is an opportunity for judges to do that.

I think that it actually enhances the judicial oath. It says, “Not only do we have integrity, not only are we independent, not only are we impartial, but we are demonstrating that. We have nothing to hide. Here are our interests, laid out.” There is no conflict at all between independence and accountability.

Rona Mackay: Do you have an opinion on why judges are reluctant to have such a register? Do you think that they think that they would be compromised, or is it that they just do not want to be accountable? Do you know why they are resistant to the proposal?

Moi Ali: I do not understand it. Traditionally, the judiciary in Scotland is quite conservative and is steeped in tradition. Those are not, in themselves, bad things, but society has moved on, and I think that the judiciary has failed to keep in step with that. The benefit of the proposal is that it provides members of the judiciary with an opportunity to accept that they are in the 21st century and that they should start to do some of the things that other people in public life have done for quite a few decades, which is to be more open about their interests.

I do not know the what the reluctance is. I am not saying that judges have anything to hide; I am simply saying that they should be more positive about the proposal and show that they do not have anything to hide.

Rona Mackay: Do you think that it comes down to a resistance to change and a wish to stick to the traditional way of doing things?

Moi Ali: I suspect that that is the reason. I think that we can all be a little bit resistant to change and sometimes need a little bit of encouragement in that regard.

The Convener: I have been looking into the risk of abuse. On the surface, a lot of what is being proposed sounds sensible, but, when you get into the detail of it, it perhaps does not seem so sensible. The issue of JPs not being on the list seems strange, given that they are dealing with a local community and they could well have relevant connections there. That certainly seems like something that should be looked at further.

I want to go into the detail around the issue of looking at a judge’s private life. For example, if someone who has nothing to do with a case and to whom the judge has no connection has blocked a judge’s car and he cannot get out and is being rude to the person, would that be a complaint that would be upheld, perhaps on the ground that a judge should not be rude to anyone?

Moi Ali: In all sorts of roles, it is common for one’s conduct in one’s private life to be subject to complaints. I am sure that, as an MSP, you are familiar with that. The behaviour of an MSP or a board member in their normal life outwith their day job can be subject to complaints, just as the behaviour of doctors, nurses, dentists and people in a range of other professions can be. That is normal. However, I do not see the connection between that and the register of interests. What you are talking about is part of the complaints process. It is the sort of complaint that, I suspect, would not be looked into. I have seen similar complaints that have not been looked into by the judicial office.

The Convener: I suppose that I was going back to the JCR’s powers. You said that should extend to looking at a judge’s conduct in their private life.

Moi Ali: The rules that govern complaints against the judiciary in Scotland cover that. People can make complaints about judges’ conduct in their private lives as well as their conduct in the courtroom. However, from my former experience as the JCR, I can say that very few complaints about conduct outwith the courtroom are progressed.

The Convener: With regard to the suggestion that every complaint should be published, whether it is upheld or not, would that be open to abuse, given that people can make vexatious complaints about someone who is in a position of power, as judges are in relation to their ability to determine issues around people’s liberty? Should every complaint be published, or should only those that are upheld be published?

Moi Ali: I have no issue with only upheld complaints being published. At the moment, they are not. I do not think for one minute that every complaint should be published. However, if something has gone through the whole process and, at the end of that, it has been upheld, I do not quite understand why that complaint is not published in the way that it is in England and Wales or the way that it is in Scotland in relation to other professional groups.

The Convener: What kind of things do you think should be included in the register that are not included in it just now? I think that I read in your submission—it might have been in an interview—that you thought that relatives should be included.

Moi Ali: That is right. If people have family connections in the legal world, that ought to be declared. You do not want a scenario in which a judge has a daughter who is a lawyer and they are in the same courtroom together, because that could lead to a perception of bias one way or the other. I think that relevant family connections should be declared. I am not talking about people having to spell out who all of their family members are and what they do. However, if there is close family connection in the legal field, that ought to be declared, because that is relevant to whether people’s perception of fairness.

The Convener: Would that not happen just now? At the moment, a judge might say that his wife’s job is not a relevant interest because, for example, she works for the national health service, but, if a case comes up that involves the NHS, the judge would say, “Sorry, there is a conflict of interests here.” Is it not the case that what you are suggesting involves almost second-guessing what might be a registrable interest?

Moi Ali: No, because I do not think that the fact that a family member works in the NHS would be a registrable interest. That would be dealt with by a recusal at the time. There is a need for both things to be possible. A relevant interest that would be registered in advance would be a legal link—somebody working in a different part of the legal system or the wider criminal justice system, for example. However, the situation that you are describing—in which a judge who has a family member who works in the NHS is presiding over a case that involves the NHS—would be dealt with by way of recusal.

The Convener: I would like to address the issue in a wider sense. Our judges are the ultimate upholders of the law. They can give life sentences and they are involved on a daily basis with people whom you and I would not like to meet. We already know that our prisons are battling with serious organised crime. Do you have any concerns about the possibility that the level of detail that you are asking to be submitted to the register of interests could put our judges in a position in which they felt threatened or, indeed, in which they were threatened?

Moi Ali: I do not understand how that could happen. For example, in my job with the Crown Prosecution Service, I deal with complaints from defendants, people who are imprisoned and people who have committed serious crimes. I have entries in publicly available registers of interests on a number of different websites. All that information is available for anyone to look up. I do not understand how that would lead to threats being made. That certainly has not happened to me. I do not follow that argument.

The Convener: I was suggesting that members of the judiciary are in a different position from employees of the Crown Office and Procurator Fiscal Service, as they should be. A judge is the ultimate determiner of a sentence. He or she will decide if your liberty is going to be taken away from you and you are going to be sent to prison. That is serious. Do you have any concerns the register of interests, in the form that you are suggesting that it should be implemented, would compromise their safety?

Moi Ali: No, I genuinely do not. I certainly would not be pushing for anything that I felt would put people in danger. I cannot conceive of any situation in which a register of interests could be used in any way that would place somebody in danger. It is simply a list of interests—it might state, for example, that somebody owns a significant number of shares in a company, is a member of a particular group or society in a capacity that might impact on their judicial role, or has family connections in the criminal justice system.

A lot of judges publish such information already in relation to the various roles that they undertake, and that has not—to my knowledge—placed anybody in danger. I am afraid that that concern is a complete red herring. I genuinely cannot see how a register of interests could be misused to put somebody in danger. I just cannot see what information it might contain therein that would create such a risk.

The Convener: You say that judges already give that detail, which raises another question. Peter Cherbi helpfully provided information on that, and I was struck by the level of detail that is already disclosed—which, as you mentioned, includes information on shares.

Such information is covered just now. However, we know from our work on this committee and on the Justice Sub-Committee on Policing that serious organised crime is always a step ahead. We always need to catch up with the latest way to put pressure on criminals, and to look at where criminal activities can flourish and how they can be halted. That is the difference between the judiciary and COPFS. Do you accept that there is a difference?

Moi Ali: Yes, of course. My response to your question is that, if someone involved in serious crime decided that they wanted to have a go at a judge who had locked them up, they would not be deterred by the fact that there was not a register of interests. They would not think, “Oh well, I won’t bother then.” If somebody has set their heart on doing someone harm, that is—regrettably—going to happen. It will not be prevented by there not being a register of interests that shows that judges are open and accountable. In fact, it is probably quite the reverse: if judges’ esteem is enhanced by the fact that they are operating more openly and transparently, that will raise the standard of judicial office-holders and enhance public trust and confidence in their role.

I am afraid that, if people are hell-bent on doing bad things, they are going to do those things, whether or not a register of interests exists. I do not, therefore, quite follow the argument that is being made.

The Convener: I suppose that it is a question of balance. How far can we move towards ensuring that there is maximum transparency? We must take into account that, if we go over the line and judges are required potentially to disclose so much about their private life, that might put not necessarily them but their friends and relatives in danger, as they might be open to being blackmailed or whatever. All those things are possible. Have you thought about that at all?

Moi Ali: Yes, I have thought about that, and my answer is the same. We are not asking judges to publish information on where they live or detail that would place them in any danger. We are simply saying that, if they have business dealings that might be relevant to their role or family connections who are part of the criminal justice system, which might cast doubt on their decision making, such information ought to be declared in a register of interests. In the same way, you and I have to publish similar details of interests that might impact on our roles and on perceptions about our impartiality.

I do not believe that the proposed register would create any danger or difficulty. If I genuinely believed that that was the case, I would not support it; I would not wish to put anybody in danger. I genuinely do not think that there would be any danger at all in having a register—in fact, it is quite the reverse. If trust is enhanced, that surely has to be a good thing.

The Convener: If there was a failure to disclose, what would the sanction be?

Moi Ali: It would be the same as what happens now: the complaints system would be used. A complaint would be lodged, and it would be investigated. I would like to see the complaints system changed, but perhaps that is for another day. There is a complaints system and a clear set of rules, and that system would be used to investigate any complaint about a failure to declare an interest.

The Convener: Would failure to disclose be a criminal offence?

Moi Ali: It is not a criminal offence at present. The complaints procedure is not currently a criminal process, and I am suggesting that that procedure could be used to investigate such a complaint. It would be an internal disciplinary matter for the judiciary.

My reluctance to be pinned down on the detail is due to the fact that this is not my petition. I am here because I support, in principle, the notion of greater openness and transparency. A lot of these questions concern detailed issues that would need to be teased out if the committee decides to take the proposal forward. In my view, it is workable, given that it works in other areas of public life. However, the workings and detail of the proposal would need to be determined, and those questions are not for me to answer; the judiciary would need to look at those issues and consult widely on them.

I see no reason why the proposal could not work. It would not have to involve an extra layer of criminal process; the internal system could be used.

The Convener: For the avoidance of doubt, your evidence today has been very helpful. I appreciate that you support the principle of the proposal but, for the committee, the devil is in the detail, and we have to look at that. Thank you very much.

Liam Kerr (North East Scotland) (Con): I have a brief supplementary. For complete transparency, I declare that I am a practising solicitor who is registered with the Law Society of Scotland and the Law Society of England and Wales.

The convener suggested that a register might increase transparency and thus public confidence in decisions. However, one can formulate a scenario in which a decision is handed down that might seem—let us say—to be unduly lenient, and the information in the register might show that a judge has another role that could arguably be said to have influenced the decision—at least, the optics might suggest that that is the case. In such a scenario, could transparency undermine confidence in a decision in a way that would not currently happen?

Moi Ali: There may well be cases in which that happens, but people ought to be open to challenge and scrutiny. I genuinely think that, by and large, by laying things bare and being open, credibility is enhanced.

You are right to suggest that, on occasion, people might say that a decision is concerning because of a certain link. Nonetheless, do we not want a society in which people challenge things if they do not look right? It does not mean that they are not right but, in all areas of life, we need to challenge things that may not appear, on the face of it, to be right.

John Finnie: I have a supplementary. It is three weeks short of seven years since the petition was first introduced to Parliament. We are taking evidence today, and we have received written evidence on the matter. The original petition related to pecuniary interests. A lot has been said about bad guys and all sorts of threats, but such issues are perhaps more likely to surface in civil cases than in criminal cases in which judges deliberate.

Given your experience in various other bodies, do you think that there has been any reputational damage to our judiciary as a result of their apparent resistance to move on something—namely, openness and transparency—that is seen as a matter of fact in many jurisdictions?

Moi Ali: Yes, I think that there has been damage; one has only to look at the headlines in the newspapers to see that. Without a shadow of doubt, it has created the perception that there is something to hide. That is unfortunate, because I suspect that, in the majority of cases, there is nothing to hide. That is why I do not understand the resistance to this change. I think that there is simply a concern about things changing, and a lack of acceptance of such change.

Damage has been caused, and there is nothing to lose by publishing judges’ interests—it would definitely enhance the standing of the judiciary and build public trust and confidence. At present, the nature of the headlines concerns the question of what there is to hide, and people then dig around to try to find out. If all the information were published, it would put a stop to that practice.

Shona Robison (Dundee City East) (SNP): Good morning. Lord Carloway said in his written evidence that a register of financial interests could “have a damaging effect on judicial recruitment.”

It is not necessarily the case that anyone would have anything to hide, but there may be such a perception as a result of the extended scrutiny. Would a register of interests have a negative effect on judicial recruitment in any way?

Moi Ali: I honestly do not think that it would. If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary. If the need for transparency put people off, that might not be a bad thing because they might not be the sort of people whom we want to be sitting in judgment.

By and large, a requirement to register interests does not put large numbers of people off wanting to sit on public boards or build a career in politics. It has not deterred me or any of you—we are all here today, and we all publish declarations in a register of interests.

I do not agree, therefore, that it necessarily follows that people would be put off becoming judges. People do that job because it is a public service and a very worthwhile thing to do. I would hope that the sort of people who want to do that job would want to do it in an open and transparent way.

Liam Kerr: On that point, I want to raise a theoretical possibility. Let us say that Scotland has a register but England—as is currently the case, although a register has been proposed—does not. Is it theoretically possible that England would become a more attractive jurisdiction in which to become a judge if one did not share the belief that such a degree of transparency would be ideal?

Moi Ali: That argument could be applied in reverse. At present, members of the judiciary in England and Wales have a very robust complaints system, and findings against them are published on a website. That has not caused hordes of members of the judiciary to move north of the border to avoid the system. My answer is no, it would not.

Fulton MacGregor (Coatbridge and Chryston) (SNP): I have a supplementary on an earlier point relating to transparency. I am interested in how the register might impact on the communities that we represent. We often hear that certain communities have less faith in the criminal justice system as a whole, perhaps because of religion, ethnicity, age or social demographics. How might the introduction of such a register, and the transparency that you describe, impact on certain groups?

Moi Ali: I think that it would impact very positively. You are quite right—a number of groups in society are suspicious of the judiciary and feel that it is a closed world that is all very incestuous. It is a world with which they are not familiar, and there is a lot of concern about judicial decisions. The introduction of greater transparency could only have a positive impact in that regard.

If a group of people say, “We’re not going to be open about that. You are open about that, but we’re not going to be,” that creates a suspicion that there is something to hide. If we say that there is nothing to hide and we are quite happy to publish that information, it can do nothing but enhance the standing of judges across society.

Fulton MacGregor: In your role, have you come across any examples of where a situation might have played out differently had there been a register of interests in place?

Moi Ali: It is difficult to think of specific examples. In general, when people get to the stage of escalating their complaint through to the very top of a complaints system—whether it concerns the police, prosecutors or judges—they have lost faith in the process. Anything that can restore faith is a good thing.

Although I cannot think of specific examples in which a register of interests would have helped, it would help in general because it is all about building the standing of judges. A register of interests would clearly do that, and would therefore lead to less of a perception that there is something to hide, whatever that may be.

The Convener: That concludes our questioning. I thank you for a very worthwhile session and for appearing on your own without the petitioner.

That concludes the public part of today’s meeting. Our next meeting will be on Tuesday 26 November, when we will begin our consideration of the Children (Scotland) Bill.

10:50 Meeting continued in private until 11:26

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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EVIDENCE, M’LORD: Scotland’s top judge complains Holyrood judicial transparency probe prevents him recruiting judges – refuses Justice Committee invitation to give evidence in cross-party backed Eight year register of judges’ interests investigation

Lord Carloway refused to meet MSPs. SCOTLAND’S top judge – Lord Carloway – has refused to appear before the Scottish Parliament’s Justice Committee to give evidence on proposals to create a register of judges’ interests contained in a cross party backed petition – Petition PE1458: Register of Interests for members of Scotland’s judiciary

Papers published late yesterday by the Scottish Parliament for next Tuesday’s 19 November 2019 meeting to discuss the petition, state the following: “The Committee also invited the Lord President of the Court of Session, Rt Hon Lord Carloway to give oral evidence on the petition. Lord Carloway declined the invitation, setting out his reasons in a letter to the Committee on 23 August 2019.”

Lord Carloway’s letter to Margaret Mitchell MSP – Convener of the Justice Committee – dated 23 August 2019 – only published late this week, states There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.”

Lord Carloway – real name Colin John Maclean Sutherland – who earns over £220K a year – also complains in the letter to the Justice Committee – that raising the issue of judicial transparency & accountability right now is hampering his ability to recruit judges for well salaried judicial jobs which come with perks, international travel, speaking events, hospitality and gold plated pensions.

Carloway ended his letter to Margaret Mitchell with a barbed comment against the Committee’s proceedings: “We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”

However, documents obtained via Freedom of Information legislation – SCTS Board members shareholdings – and from the Scottish Courts & Tribunals Service (SCTS) Annual Report – SCTS Board register of interests – reveal Lord Carloway and other members of the judiciary are already required to declare some interests in the SCTS Board which runs Scotland’s courts – reported in further detail here: FACULTY LORD: ‘Abbotsford Art & Faculty of Advocates trustee’ declaration of globetrotting £223K a year anti-transparency top judge Lord Carloway, with 20 years on the judicial bench – calls into question scrutiny of Court quango interests register

While Lord Carloway will not be present at next Tuesday’s evidence session, Justice Committee MSPs will take further evidence from Scotland’s first Judicial Complaints ReviewerMoi Ali – who has consistently backed calls for the creation of a register of judges’ interests for all members of Scotland’s judiciary.

Lord Carloway’s refusal to attend the Justice Committee marks the third refusal of a sitting Lord President to give evidence on Petition PE1458: Register of Interests for members of Scotland’s judiciary – which 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.

Previous refusals to give evidence on the judicial transparency proposal – saw Lord Carloway’s predecessor – Lord Brian Gill – twice refuse invitations to give evidence to the Public Petitions Committee,

Only upon retiring from the office of Lord President in May 2015, did Brian Gill later accept an invitation to appear before MSPs in November 2015, during which Brian Gill’s angry responses to questions from Public Petitions Committee MSPs ended up being dubbed “passive aggression” by the then Committee Convener – Michael McMahon.

Lord Carloway’s letter to Margaret Mitchell MSP, Convener of the Justice Committee, in full:

I refer to your invitation of 25 June to give evidence to the Committee in relation to the proposal for a judicial register of interests. This is a matter that has been the subject of parliamentary consideration for number of years, with the petition being lodged in 2012. Since then there have been a number of exchanges between the Petitions Committee and both my predecessor, Lord Gill, and myself. Both Lord Gill and I have given oral evidence to the Petitions Committee on this matter. For your convenience, I attach copies of the letters that Lord Gill and I have sent to the Petitions Committee, and also the transcripts of our oral evidence.

I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.

If, however, after consideration of everything that has gone before, it emerges that there are new substantive issues, I would be happy to address them. I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.

This is not the first time Lord Carloway has declined to attend the Scottish Parliament’s Justice Committee to give evidence.

In 2016, Lord Carloway was accused of stifling a Justice Committee inquiry into the Lord Advocate and Crown Office and Procurator Fiscal Service by refusing an invitation to give evidence to MSPs.

The Herald newspaper reported Lord President, Lord Carloway, wrote to every level of the judiciary telling them he has refused to give evidence to the Justice Committee’s explosive probe into the Crown Office and Procurator Fiscal Service (COPFS) – with a clear hint the Lord President’s letter was to discourage others from attending the Justice Committee’s investigation of Scotland’s prosecution service.

He said the Scottish Courts service as an institution should give evidence to the committee, rather than individual members of the judiciary, even retired ones.

After the intervention, the SJA pulled out of its scheduled appearance at today’s committee.

The behind-the-scenes activity is understood to have troubled the committee’s convener, Conservative MSP Margaret Mitchell, who at the weekend told a meeting of JPs she would be concerned if there was a perception that freedom of speech was being restricted.

Opposition parties are also privately uneasy about a possible ‘chilling effect’.

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

JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests

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

Evidence of Lord Gill before the Scottish Parliament 10 November 2015

Later, in June 2017 – Lord Carloway (real name Colin John MacLean Sutherland) did accept an invitation to give evidence at the Public Petitions Committee.

However, Carloway’s position relied on attacking the media, court users, and a demand that judges essentially be exempt from the same levels of transparency applied to all other public officials.

The judge’s appearance at the Public Petitions Committee was widely criticised, after Lord Carloway withered during detailed questions by Alex Neil MSP on serious issues of senior judges failing to declare significant conflicts of interest.

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in June 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

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

In May 2018, the Public Petitions Committee rejected Lord Carloway’s claims of an “unworkable” register, with MSPs ultimately backing the petition after a six year investigation and passing the petition to the Justice Committee for further action in May 2018, with an obvious expectation of progress – reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

HOLYROOD’S EIGHT YEAR JUDICIAL INTERESTS PROBE:

The judicial register petition – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

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 lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

The Scottish Parliament’s Justice Committee has backed calls for further work on the judicial interests register during at least THREE further Holyrood hearings, including the latest hearing from June 2019, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in May 2019 can be found here: JUDICIAL REGISTER: Justice Committee investigate approach to judges’ interests in other countries – MSPs say ‘Recusals register not comprehensive enough’ ‘Openness & transparency do not contradict independence of the judiciary’

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

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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SCRUTINY FOR JUDGES: Former Judicial Complaints Reviewer to MSPs – Judicial complaints rules are no substitute for protection generated by a full register of judicial interests

Ex-Judicial Reviewer – register judges. SCOTLAND’S first Judicial Complaints Reviewer – Moi Ali – has hit out at suggestions complaints rules for judges act as a safeguard against judicial impropriety in place of a register of judges’ interests.

Writing in a letter to the Scottish Parliament’s Justice Committee – Ms Ali said she was moved to contact MSPs after reading a letter from Justice Secretary Humza Yousaf to MSPs, claiming complaints rules for judges make a register of judicial interests unnecessary.

Moi Ali wrote: “In 2014 when I was Judicial Complaints Reviewer, I wrote to the Public Petitions Committee in support of the Register.”

“I was moved at that time to write in response to the then Justice Secretary’s submission to the Committee that such a register was unnecessary.”

“He cited the complaints rules as being one of the three safeguards that made a register unnecessary.”

“Today I have been prompted to write this letter having seen the current Justice Secretary’s almost identically-worded submission to this committee.”

“It is simply not the case that the complaints rules offer protections such that a register of interest is not required.”

Ms Ali ends her letter by telling MSPs: “I hope that the committee will see that requiring the judiciary to meet the same standards of transparency as others in public life will in no way compromise their independence.”

Moi Ali also submitted a letter she wrote during her term as Justice Secretary, in response to previous end erroneous claims by Kenny MacAskill to MSPs which have since been repeated by Humza Yousaf.

In her letter to the Public Petitions Committee, Ms Ali states: “I write not from the viewpoint of the judiciary, who have a vested interest in this issue. I write from the perspective of the Scottish public. I write not on behalf of those who hand down justice, but those who are on the receiving end. It is important that their voice is heard. They have a right to know that justice is being done, an essential component of which is that it is seen to be done. A register of interests is a tangible way of showing that justice is being done.”

“The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime. They may be women who want protection from abusing partners, fathers who want access to their children, or people whose home is at stake due to various legal or family wrangles. People going through the court system face stress and anxiety, perhaps financial pressures, and fear about the future. Their perspective is important and must be a consideration in this matter.”

“Given the position of power held by the judiciary, it is essential not only that they have absolute integrity – but crucially, that they are seen to have absolute integrity. Again, a register of interests is a way of demonstrating that a judicial office holder is impartial and has no vested interest in a case – financially, through family connections, club/society membership or in any other way. Conversely, the refusal to institute a register of interests creates suspicion that in turn undermines judicial credibility. So once more, a register of interests is good for the judiciary and good for the public.”

Humza Yousaf’s letter to Margaret Mitchell MSP, Convener of the Justice Committee – repeated the claims by former Justice Secretary Kenny MacAskill that complaints rules for the judiciary meant there was no requirement to create a register of interests for judges.

The letter from the Justice Secretary to Holyrood’s Justice Committee was reported in depth here: COPY MINISTER: ‘Copied’ content from ex Minister sent by Justice Secretary Humza Yousaf to Holyrood MSPs – Public must rely on judges judging judges for transparency, Scottish Government will not create register of judges’ interests

In the letter, Justice Secretary – Humza Yousaf – told Holyrood’s Justice Committee that judges should be allowed to judge themselves, and the public must rely on judicial oaths & ethics – written and approved by the judiciary – instead of transparency in the courts.

The judicial register petition – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

The judicial register of interests would contain information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The move to create a register of judicial interests enjoys cross party support, backing in the media, and crucial support from two of Scotland’s Judicial Complaints Reviewers – including Moi Ali

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

The lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

MSP at Holyrood have previously heard over sixty two submissions of evidence, during twenty one Committee hearings, and a private meeting between two MSPs and a top judge, and two private meetings since early December 2017 to decide a way forward on their six year investigation.

Cross party support for the Petition at the Scottish Parliament saw fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2018.

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.

Holyrood’s Justice Committee are due to consider Petition PE1458: Register of Interests for members of Scotland’s judiciary on Tuesday 28 May next week.

Moi Ali’s full letter to the Scottish Parliament’s Justice Committee reads as follows:

The following submission is for the consideration of the Justice Committee when it meets on 28 May 2019 to discuss a register of interests for the judiciary.

In 2014 when I was Judicial Complaints Reviewer, I wrote to the Public Petitions Committee in support of the Register.

I was moved at that time to write in response to the then Justice Secretary’s submission to the Committee that such a register was unnecessary.

He cited the complaints rules as being one of the three safeguards that made a register unnecessary.

Today I have been prompted to write this letter having seen the current Justice Secretary’s almost identically-worded submission to this committee.

It is simply not the case that the complaints rules offer protections such that a register of interest is not required.

Rather than repeat the arguments again, I have attached the letter I wrote in 2014. It remains as relevant today as it did at back then.

I hope that the committee will see that requiring the judiciary to meet the same standards of transparency as others in public life will in no way compromise their independence.

Yours, Moi Ali

The following is the letter sent by Moi Ali in her capacity as Judicial Complaints Reviewer, to the Public Petitions Committee of the Scottish Parliament, who were considering the petition to create a register of judicial interests:

Assistant Clerk to the Public Petitions Committee, Scottish Parliament

Consideration of Petition PE1458

I understand that the Committee is due to consider this petition again shortly. In view of this, and in response to the Cabinet Secretary’s letter of 22nd April 2014, this is an opportune time to pull together the reasons why the Judicial Complaints Reviewer believes that a register of interests for the judiciary is essential.

I write not from the viewpoint of the judiciary, who have a vested interest in this issue. I write from the perspective of the Scottish public. I write not on behalf of those who hand down justice, but those who are on the receiving end. It is important that their voice is heard. They have a right to know that justice is being done, an essential component of which is that it is seen to be done. A register of interests is a tangible way of showing that justice is being done.

I think it likely that the number of complaints against the judiciary would fall were there to be a published register of interest for judicial office holders. I have received complaints about perceived conflicts of interest that have come to light after court proceedings. A register of interests would allow issues to be dealt with at the time, thus averting the need for a complaint. That would be good for the judiciary and for the public.

The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime. They may be women who want protection from abusing partners, fathers who want access to their children, or people whose home is at stake due to various legal or family wrangles. People going through the court system face stress and anxiety, perhaps financial pressures, and fear about the future. Their perspective is important and must be a consideration in this matter.

Given the position of power held by the judiciary, it is essential not only that they have absolute integrity – but crucially, that they are seen to have absolute integrity. Again, a register of interests is a way of demonstrating that a judicial office holder is impartial and has no vested interest in a case – financially, through family connections, club/society membership or in any other way. Conversely, the refusal to institute a register of interests creates suspicion that in turn undermines judicial credibility. So once more, a register of interests is good for the judiciary and good for the public.

The Cabinet Secretary for Justice states that there are sufficient safeguards already in place, citing the complaints rules as one of these safeguards. As the person appointed by the Cabinet Secretary to review complaints handled under these rules, I can say from experience over nearly three years that the rules are not fit for purpose. I have attached a document I prepared in December 2013, following consultation with members of the public who had made complaints under these rules, to support this assertion.

The Judicial Office’s published statistics demonstrate either that judicial conduct is exemplary, and the public vexatious or unable to understand the rules; or they show that the rules are not fit for purpose. I suggest that it is the latter. For the first year in which the Rules were operational (a 13-month period to 31st March 2012), 107 conduct complaints were made to the Judicial Office and 98 were completed during that year. With one exception, all of them were dismissed without investigation. Only one investigation was carried out, following which the complaint was dismissed as “unsubstantiated”.

The latest statistics have yet to be published, but year two figures (to March 31st 2013) show that 114 complaints were made (plus the 9 carried over from year 1). Of 116 concluded during the year, only 11 were investigated. Four of the 11 were still underway at year-end, meaning that 7 investigations were completed in Year 2. Of the 7, one was withdrawn; 2 resolved informally; and 4 were reported to the Lord President. Of the 4 reported to the Lord President, 3 were deemed to be without substance, unsubstantiated or vexatious. For the one remaining complaint, an apology was offered by the judicial office holder and the Lord President deemed that no further action was required.

In summary, in the first 25 months of the new complaints regime, the Judicial Office’s published statistics show that of 221 complaints there were 12 investigations, one judicial office holder apologised for his or her conduct and no judicial office holders were disciplined.

My experience in this office leads me to the conclusion that the rules are not a sufficient safeguard. But even if they were, particularly when combined with the judicial oath and the Statement of Principles of Judicial Ethics, why not go further in enhancing transparency and accountability?

There are sufficient safeguards in place to prevent members of public boards from acting inappropriately – such as robust audit committees, external scrutiny and regulation, board meetings held in public and a rigorous appointments process. Nevertheless, such members are still required – and rightly so – to complete a publicly accessible register of interests in order to demonstrate transparency and accountability. It is right that public appointees and elected politicians are required to do this, and it is also right that the judiciary should too. Registers of interest are the norm now and the judiciary is out of step with standard practice. This undermines their standing with the public.

For all of the above reasons, it is in the interests both of the judiciary and of the public for there to be a register of interests.

I have been frank about my views in this letter, and I hope that I have not given the impression that I do not have a great deal of respect for the judiciary and the difficult work that they undertake for the greater good of society. Their work is essential, their independence vital. An independent judiciary underpins a civilised society. But with independence goes accountability, and a register of interests is a mechanism for enhancing accountability.

I will be standing down from my role as JCR in the summer, but until that time I am happy to provide further information to the committee if that would be helpful.

Yours sincerely,

Moi Ali, Judicial Complaints Reviewer

TOP SCOTS JUDGES FAIL IN HOLYROOD TRANSPARENCY PROBE:

Both of Scotland’s recent top judges failed to convince MSPs that a register of interests is not required for judges – even after both Lord Presidents attempted to press home the existence of judicial oaths and ethics – which are both written, and approved by – judges.

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

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

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

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JUDICIAL REGISTER: ‘Judges should register their interests’ says former Judicial Investigator – as Holyrood Justice Committee set to consider SIX YEARS of work, evidence and backing from MSPs & Public Petitions Committee

Scottish Parliament probe judicial interests & register proposal. A SIX YEAR Scottish Parliament probe into Petition PE1458: Register of Interests for members of Scotland’s judiciary which generated over sixty two submissions of evidence, twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate – is set to be looked at by Holyrood’s Justice Committee, tomorrow – Tuesday 25 September.

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The move to create a register of judicial interests enjoys cross party support from a full debate at Holryood in October 2014.

Now, members of the Scottish Parliament’s Justice Committee are set to look at the proposals, already backed by many MSPs and the Public Petitions Committee.

Recommendations for action by Justice Committee members – listed in papers for Tuesday’s meeting include the following options:

5. Once a petition has been referred to a subject Committee it is for the Committee to decide how, or if, it wishes to take the petition forward. Among options open to the Committee are to: Keep the petition open and write to the Scottish Government or other stakeholders seeking their views on what the petition is calling for, or views on further information to have emerged over the course of considering the petition; Keep the petition open and take oral evidence from the petitioner, from relevant stakeholders or from the Scottish Government; Keep the petition open and await the outcome of a specific piece of work, such as a consultation or piece of legislation before deciding what to do next; Close the petition on the grounds that the Scottish Government has made its position clear, or that the Scottish Government has made some or all of the changes requested by the petition, or that the Committee, after due consideration, has decided it does not support the petition;

The Committee may wish to consider what action, if any, it would like to take in  relation to the petition. Possible options are set out at paragraph 5 above. If this is an issue that the Committee would like to explore further, it may wish to consider writing to those listed at paragraph 9 to ask whether they had anything to add to their earlier contributions. It could also seek more information on the Norwegian model, and then obtain an updated briefing from SPICe.

Included also in the Committee papers are submissions from the Petitioner, and Moi Ali – Scotland’s first Judicial Complaints Reviewer – who gave evidence to the Public Petitions Committee in September 2013, supporting the petition’s calls for the creation of a register of judicial interests.

The submission from Moi Ali reads as follows:

This brief submission to the Justice Committee relates to its consideration of a proposal to implement a register of interests for the judiciary. I am writing as an ordinary citizen, but my submission is informed by my experience as Scotland’s first Judicial Complaints Reviewer (JCR).

In that previous role I gave evidence to the Petitions Committee in support of a register of interests.

Although now writing in a private capacity, I have served on public boards for nearly two decades and as a Board Member I have (rightly) been required to complete a register of interests for each role, to provide assurance to the public that my dealings are not motivated by money, family connections or friendships.

The Justice Committee members who will take the decision on a register of interests, as MSPs must publish their interests too.

It is time that the judiciary joined the rest of those in public life in taking this small, simple step to improve transparency and accountability, thereby enhancing their own reputation in the process.

I have long campaigned for greater transparency in public life, yet in my role as JCR I occasionally found the judiciary to be needlessly secretive.

I am not suggesting that there was anything to hide, but a failure to be transparent inevitably left the public with whom I dealt feeling suspicious.

I will not rehearse the arguments in favour of a register of interests: they are well known.

However, I would emphasise that although opposed by the judiciary, it is in their own interests as well as the public interest that there be a register of interests.

I would like to conclude by reiterating my respect for the judiciary and the essential work that they undertake. Judicial independence is vital to a democracy, but with independence goes accountability. A register of interests is a mechanism for enhancing accountability. Ms Moi Ali 18 September 2018

In March of this year, after lengthy deliberations & evidence,  the Scottish Parliament’s Public Petitions Committee backed the petition calling for the creation of a register of interests, and concluded the proposal to increase judicial transparency – should become law.

On Thursday, 22 March 2018, the Public Petitions Committee of the Scottish Parliament held it’s 25th hearing on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Members of the Committee concluded that such a register should be introduced into law – and cast aside arguments put forward by two top judges that such a register was “unworkable

Petitions Committee Convener Johann Lamont MSP (Scottish Labour) said: “In the course of our consideration of the petition, positive developments have occurred—most notably the introduction and further development of a register of judicial recusals. The register brings welcome transparency to instances where a judge may decide, or be requested, to decline to hear a particular case. “

“The committee particularly welcomes the recent agreement of the Lord President to expand the information that is captured in the register. However, the core action that was requested by the petition was the establishment of a register of financial interests.”

“We have given much thought to this request, hearing views both for and against such a register. Having taken those arguments into account, the committee has concluded that a register of financial interests is not unworkable, and it is the view of this committee that such a register should be introduced.”

Deputy Convener Angus MacDonald MSP (Scottish National Party) added: “This is another long-running petition, having been live since December 2012—for as long as I have been on the committee. It was originally based on a similar move in New Zealand, which was subsequently withdrawn.”

“Along with a wide range of back benchers from across the political spectrum, I spoke in favour of the introduction of a register of interests during a debate in the chamber in the previous session. It is clear to me that we need to ensure transparency and openness in public life as well as ensuring that people can have confidence in those holding public office. I believe that a register of interests along the lines of the system operating in Norway, which I have looked at, is the way to go. However, I am aware that the committee as a whole has not taken a view on that.”

“The petition has already secured a result, which you have referred to, with the introduction of a register of recusals, which was brought into effect in April 2014, directly as a result of this petition. You also referred to the fact that the current Lord President, Lord Carloway, has agreed to extend the scope of the register of recusals.”

“I would be keen for the Scottish Government and the Judicial Office for Scotland to do some further work on the introduction on the introduction of a register of financial interests. However, as you have suggested as possibly being the way forward, in the first instance we should refer the petition to the Justice Committee to allow it to move the issue forward.”

The Petitions Committee have since written to the Justice Secretary Michael Matheson, and Lord Carloway.

When responses are received, MSPs will consider further action.

Video footage and a transcript of the Public Petitions Committee hearing follows:

Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

Judiciary (Register of Interests) (PE1458):

The Convener:  The next petition, PE1458, calls for the introduction of a register of interests for members of Scotland’s judiciary. As members will recall, we have previously agreed to write to the Lord President and the Cabinet Secretary for Justice, and have considered a draft letter at previous meetings. The petition has received much consideration since it was lodged in 2012. I express my gratitude to the petitioner for raising the issue and to all those who have engaged in discussions on the issues that are raised in the petition, including the Lord President, Lord Carloway, and his predecessor, Lord Gill.

In the course of our consideration of the petition, positive developments have occurred—most notably the introduction and further development of a register of judicial recusals. The register brings welcome transparency to instances where a judge may decide, or be requested, to decline to hear a particular case. The committee particularly welcomes the recent agreement of the Lord President to expand the information that is captured in the register. However, the core action that was requested by the petition was the establishment of a register of financial interests. We have given much thought to this request, hearing views both for and against such a register. Having taken those arguments into account, the committee has concluded that a register of financial interests is not unworkable, and it is the view of this committee that such a register should be introduced.

In reaching that view, the committee is very clear that it does not consider there to be a basis for any suggestion of corruption in respect of Scotland’s judiciary or of inappropriate influences on judicial decision making. Rather, it is the view that we have reached, based on the principles of transparency and openness in public life. While that is the view of this committee, we also understand that the Lord President and the Scottish Government have indicated they do not support the introduction of a register.

Would it be appropriate for us to invite the Justice Committee to consider the petition in light of our recommendation? Would members be content to write to the Lord President and the Scottish Government setting out our view and to refer the petition to the Justice Committee for its consideration? Do members have any comments?

Angus MacDonald (Falkirk East) (SNP): This is another long-running petition, having been live since December 2012—for as long as I have been on the committee. It was originally based on a similar move in New Zealand, which was subsequently withdrawn. Along with a wide range of back benchers from across the political spectrum, I spoke in favour of the introduction of a register of interests during a debate in the chamber in the previous session. It is clear to me that we need to ensure transparency and openness in public life as well as ensuring that people can have confidence in those holding public office. I believe that a register of interests along the lines of the system operating in Norway, which I have looked at, is the way to go. However, I am aware that the committee as a whole has not taken a view on that.

The petition has already secured a result, which you have referred to, with the introduction of a register of recusals, which was brought into effect in April 2014, directly as a result of this petition. You also referred to the fact that the current Lord President, Lord Carloway, has agreed to extend the scope of the register of recusals.

I would be keen for the Scottish Government and the Judicial Office for Scotland to do some further work on the introduction on the introduction of a register of financial interests. However, as you have suggested as possibly being the way forward, in the first instance we should refer the petition to the Justice Committee to allow it to move the issue forward.

Rona Mackay: I broadly agree with what my colleague has said. That is a natural way forward for the petition. I do not think that we can take it any further, given the history that we have just heard. I think that it is sensible to send it to the Justice Committee for its consideration.

The Convener:  Do we agree to write to the Lord President and the Scottish Government setting out our view and to refer the petition to the Justice Committee for its consideration?

Members indicated agreement.

Decision: PE1458 by Peter Cherbi on Register of Interests for members of Scotland’s judiciary. The Committee agreed to write to the Lord President and the Scottish Government setting out its view that a register of interests should be introduced and to refer the petition to the Justice Committee, under Rule 15.6.2 of Standing Orders, for its consideration.

The judicial interests petition – filed at Holyrood in October 2012 and first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

MSP at Holyrood have previously heard over sixty two submissions of evidence, during twenty one Committee hearings, and a private meeting between two MSPs and a top judge, and two private meetings since early December 2017 to decide a way forward on their six year investigation.

Cross party support for the Petition at the Scottish Parliament saw fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2018.

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

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

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

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

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

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

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

The letters sent by the Public Petitions Committee to Lord President Lord Carloway, and Justice Secretary Michael Matheson recommend the creation of a register of judicial interests:

Dear Lord Carloway,

Petition PE1458: Register of Interests for members of Scotland’s judiciary

Calling on 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.

As you may be aware, the above petition was lodged in December 2012 and has been considered by the current Public Petitions Committee and its Session 4 predecessor. Over this period MSPs have taken on board the arguments for and against a register of interests and the nature of the interests that might be covered in such a register. This letter sets out the conclusions that the Public Petitions Committee has reached on the petition.

In setting out these conclusions, I would emphasise that the Committee absolutely recognises that an independent and well-functioning judiciary is, and must be, an essential part of our system of government.

I also make clear that the Committee’s consideration of the petition, and the views set out in this letter, reflect our viewpoint that there is no basis for any suggestion of corruption in respect of Scotland’s judiciary or of inappropriate influences on judicial decision making.

The Committee has reached its views based on the wider contemporary picture of transparency and openness in public life wherein preventing the perception of any undue influence is important in ensuring confidence in those holding public office.

Register of recusals

One of the welcome developments in the course of this petition has been the introduction of a register of recusals. The Committee notes that this register was brought into effect in April 2014 directly as a result of the petition and a meeting between the then Lord President, Lord Gill, and representatives of the Session 4 Public Petitions Committee. In recent discussions with the Committee, and the petitioner, you agreed to extend the scope of the register of recusals. As a result, the register will now ensure transparency about recusal across courts and tribunals in Scotland. The Committee very much welcomes these measures.

In doing so, we note that this addresses one of the arguments made against a register of financial interests – that it would not capture those instances where consideration of any potential conflict in a case was based on a social or personal connection that may not be known about prior to a case coming to court.

The Committee agrees that the practicalities are such that it would not be possible or proportionate to require advance registration of personal connection with parties that may at some point be relevant within a particular case. However, we do consider that public transparency of such connections is vital and the register of recusals is the tool that strikes an appropriate balance in this regard.

We would also observe that the value of collating information about recusals is that it enables analysis to be undertaken of the way the recusal systems operates and for this analysis to inform ongoing thinking about the administration of justice through the Scottish courts.

Register of financial interests

Turning now to the core question of a register of interests, the Committee’s most recent consideration of the petition focussed on seeking to understand and explore some of the arguments put forward against the introduction of such a register.

These arguments have included—

• a risk of online fraud due to retribution from dissatisfied litigants (which, it was argued, may have an inhibitory effect on the administration of justice if judges start to decline roles on public bodies such as the board of the Scottish Courts and Tribunals Service) and,

• the possibility of the existence of a register of interests having a damaging effect on recruitment.

Members do, of course, have an understanding of the practical operation of a register of interests given the duties that apply to elected members. However, in considering the arguments put forward, we have not considered the role of judges as analogous to the role of elected members or had in mind any particular model for a register of interests that might be appropriate for judges.

Instead, our consideration has been based on an understanding of the expectations that apply to all holders of public office, whether elected or unelected, in relation to disclosure of financial interests. As we noted above, such disclosures not only allow for demonstration that decision-making is not influenced by personal interests but also prevent the perception of the influence of interests on decision-making.

Having considered these arguments and the thinking behind them, the Committee has not been convinced that a register of interests is an unworkable idea and it is the view of the Committee that such a register should be introduced.

Recognising that the Scottish Government and the Judicial Office for Scotland have indicated that they do not support the introduction of a register, the Committee today agreed to refer the petition to the Justice Committee, inviting that Committee to consider the petition further, in light of our recommendation.

Yours sincerely: Johann Lamont MSP Convener

The National reported on the success of the six year petition calling for a register of judicial interests, in the following articles:

Judges register backed by MSPs to become law

Martin Hannan Journalist 23 March 2018

IT’S taken nearly six years and 25 hearings but as The National predicted yesterday, a register of interests for all Scottish judges is set to become law.

The petition for a register by legal issues campaigner Peter Cherbi will now go the Justice Committee at Holyrood with a recommendation that the register becomes law.

The current and previous Lord Presidents, Lord Carloway and Lord Gill respectively, both strongly opposed the register which they feel will make it difficult for judges to be recruited.

Committee chair Johann Lamont said: “The committee has concluded that a register of financial interests is not unworkable and it is the view of the committee that such a register should be introduced.”

She said the committee’s view had been reached with regard to “the principles of openness and transparency in public life”.

Having achieved his success after years of work, Peter Cherbi told The National: “I am delighted to hear the Public Petitions Committee support the creation of a register of interests for judges, and applaud their work on this petition.

“From filing the petition in 2012, being a part of the process to submit evidence, report on hearings, and observing witness evidence, I am very impressed that Holyrood followed this through from committee, to a full debate in the main chamber in October 2014, where the petition gathered overwhelming cross party support, to now, with the decision to recommend the creation of a register of judicial interests.

“Key evidence from Judicial Complaints Reviewer Moi Ali in September 2013 was, I believe, the turning point and a key moment where the proposal for register of judicial interests gathered steam.

“MSPs were able to hear for themselves from someone within the justice framework how a register of interests for judges would not only benefit transparency, but also bring back much needed public trust and respect to the justice system and our courts.

“My sincere thanks to MSPs Angus MacDonald, David Torrance, current Convener Johann Lamont, ex-convener David Stewart, Jackson Carlaw, particularly Alex Neil who asked key questions several times in the process, former MSPs Chic Brodie and John Wilson and all members of the Public Petitions Committee past and present who have given their considerable time, effort and input into this petition, have taken the time to study the evidence, and arrive at the conclusion transparency in the judiciary is a good thing, and not as Lord Carloway and Lord Gill claimed ‘unworkable’.”

This is a good day for the Scottish Parliament and for transparency.

The Sunday Mail print edition reported on the Petitions Committee backing for legislation to require judges to declare their interest, and also featured a report on Alex Neil MSP – who supports the judicial transparency proposals and is prepared to bring in a Members Bill to create a register of judges’ interests:

BATTLE TO BRING IN JUDGES’ REGISTER

Sunday Mail 25 March 2018

Ex-minister Alex Neil will defy Nicola Sturgeon with a bill forcing Scotland’s judges to declare their interests.

Holyrood’s petitions committee have asked the Government to legislate for a register which may include details of financial, professional and personal connections of judges, sheriffs and justices of the peace.

Sturgeon is expected to reject the committee’s recommendation. But Neil believes there is enough cross-party support to raise his own bill, in a rare act of SNP backbench rebellion.

He said: “If no bill is brought forward by the Government, I would intend to do so myself, as there is significant support from other MSPs.”

Former health secretary Neil backs the register after representing constituent Donal Nolan, who took Advance Construction to court over a land dispute.

It later emerged that judge Lord Malcolm sat on the case despite his lawyer son Ewen Campell acting for the construction firm.

Neil said: “If the committee decide to recommend a bill, it is absolutely necessary as I have seen from cases such as Nolan v Advance Construction where there were undeclared interests.”

The Scottish Sun print edition also reported on the Petition Committee’s backing for a register of judicial interests and Alex Neil MSP’s plan for a Member’s Bill:

JUDGE LIST IS BACKED

Scottish Sun 23 March 2018

MSPs defied Nicola Sturgeon yesterday by calling for judges to list their financial ties.

Holyrood’s cross-party Public Petitions Committee backed a register of interests for the judiciary.

Its convener Johann Lamont said the move was based on “principles of transparency and openness in public life”.

Top judge Lord Carloway claimed the register would hit recruitment and the Government has said it was “not needed”.

Last night Nats MSP Alex Neil warned if plans for the list are not backed he is “prepared to do it as a Member’s Bill”.

A further report in The National newspaper:

MSPs to call for judges’ register in Scotland after years-long campaign

Martin Hannan Journalist 22 March 2018

AFTER nearly six years and 25 sittings of evidence and debate on the petition to create a register of judges’ interests, The National has learned that the Holyrood Petitions Committee is set to recommend legislation to the Scottish Government.

The petition lodged by legal issues campaigner Peter Cherbi in 2012 called for a Register of Pecuniary Interests Bill and when it meets later today, the Petitions Committee will have a draft letter before it suggesting the Scottish Government brings in such a register.

Cherbi’s petition has been strongly supported by MSPs such as Alex Neil and equally strongly opposed by members of the judiciary led by the current and former Lord Presidents, Lords Carloway and Gill respectively, who said it could be harmful to judges and their recruitment.

Cherbi said last night: “Everyone apart from the judiciary, and apparently those with a desire on becoming a judge, gets the idea that judges should declare their interests in a register, just like everyone else in public positions.

“For the judiciary to have stalled this transparency proposal on their reasoning that judges should be given a pass from transparency just because they are judges does not fit in with modern life or expectations by the public of openness in government and the justice system.

“Two top judges have given evidence. Both adopted overwhelmingly aggressive positions to the idea that the same transparency which exists across public life, and which they are charged with enforcing in our courts, should be applied to them.

“Yet amidst their inferences that justice would shut down, judges could not be hired, and the world would stop turning, neither Lord Carloway nor Lord Gill could make a convincing case against creating a register of judicial interests.

“Prosecutors, police, court staff, even the legal aid board – all key parts of the justice system have registers of interest. Therefore there can be no exclusion from transparency for the most powerful members of the justice system – the judiciary itself.

“Who would have thought judges would have been so fearful of transparency and disclosing their own interests, that it would have taken six years for the Scottish Parliament to reach this stage of recommending legislation? Time now to take openness forward for our judiciary, which will ultimately help regain a measure of public confidence in the courts.

“This is a win win for Scotland. We as a team, petitioners, the media, Judicial Complaints Reviewers, those in our courts and even the legal profession who back this move – changed the judiciary’s expectations of openness and requirements of transparency.”

The video timeline of debate at the Scottish Parliament’s Public Petitions Committee from 2012 to 2018 on Petition PE1458:

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

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

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

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

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

 

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

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

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

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

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

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

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

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

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

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

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

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

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

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

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

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

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

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

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

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

The Petition will next be heard on Thursday 7 December 2017 where the Public Petitions Committee will be asked to consider taking evidence from Baroness Hale, President of the UK Supreme Court, and to seek further evidence on the operation of Norway’s Register of Judicial Interests.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

 

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

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

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

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

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

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

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

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

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

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

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

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

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

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

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

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

 

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

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

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

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

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

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

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

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

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

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

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

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

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

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

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

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

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

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

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

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

The Petition will next be heard on Thursday 7 December 2017 where the Public Petitions Committee will be asked to consider taking evidence from Baroness Hale, President of the UK Supreme Court, and to seek further evidence on the operation of Norway’s Register of Judicial Interests.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

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

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

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

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

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

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

Judiciary (Register of Interests) (PE1458)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brian Whittle: Yes.

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

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

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

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

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

Brian Whittle: Yes, please.

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

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

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

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

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

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

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

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

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

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

Angus MacDonald: Okay. Thank you.

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

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

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

Rona Mackay: Fair enough.

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

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

Maurice Corry: Options to make it more transparent.

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

Maurice Corry: Yes.

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

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

Lord Carloway: Yes.

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

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

Angus MacDonald: That is good.

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

Lord Carloway: I thought that it was defeated.

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

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

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

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

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

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

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

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

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

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

Alex Neil: Have you investigated it?

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

Alex Neil: No, but have you investigated it?

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

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

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

Alex Neil: Your office—

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

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

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

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

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

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

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

The Convener: Last question, please, Mr Neil.

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

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

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

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

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

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

Members indicated agreement.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

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APPROVED BY M’LORD: Former Police Chief & Legal Complaints board member receives approval from Lord Carloway to fill ‘window dressing’ Judicial Complaints Reviewer post

Ex top cop & SLCC Board member is new Judicial Investigator. A FORMER Deputy Chief Constable of Tayside Police who served as Convener of the Standards Commission for Scotland and was a board member of a tainted legal complaints quango – has been approved by Scotland’s top judge to investigate judges and serve as Scotland’s third Judicial Complaints Reviewer (JCR).

Ian Gordon, who also formerly served as a board member of the pro-lawyer Scottish Legal Complaints Commission (SLCC) and is currently Acting Commissioner with the Northern Ireland Public Service Ombudsman Office – will now serve as Judicial Complaints Reviewer from 1 September 2017 to 31 August 2020.

Ian Gordon’s appointment as JCR, which is required to be approved by Scotland’s top judge – currently Lord Carloway – was announced by Justice Secretary Michael Matheson yesterday, Monday 14 August.

However, MSPs from across the political spectrum have called for the judicial watchdog to be given new powers and a review of the role undertaken by the Scottish Government amid controversy over the lack of powers to the JCR.

Moi Ali – Scotland’s first Judicial Complaints Reviewer branded the JCR role as “window dressing” in evidence to MSPs at Holyrood during September 2013 – featured in a report here: As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

Moi Ali continually called for extra powers until she quit the role in 2014 amid lack of cooperation from the judiciary & Scottish Government.

Gordon’s appointment as Judicial Complaints Reviewer comes after both his predecessors complained the SNP Government starved the post of resources.

Last week, the Sunday Herald published a further report on the controversy around the office of Judicial Complaints Reviewer, revealing current Gillian Thompson has published further concerns on the relevance and efficacy of the job.

Gillian Thompson said her contracted hours of just three days a month “inevitably” led to delays, “inconvenience for complainants” and ultimately “a poor service”.

She said she doubted public expectations were being met, complained her access to investigation files was limited, and urged ministers to “review the relevance of the role”.

Gillian Thompson published two annual reports on her work as JCR, last week – which contain no case histories after the Scottish Government suggested such references be excluded in published reports.

Several weeks ago Thompson was caught in a controversy where documents released by the Scottish Government revealed she had accused her predecessor of being the source of media interest in the lack of published annual reports by the JCR.

The accusations turned out to be false, and the Scottish Government ordered journalists to destroy the initial release of documents, which was swapped for another version by Stuart Lewis, a Senior Media Manager for the Scottish Government’s Justice & Education hub. Lewis refused to identify who took the decision to order destruction of the FOI documents.

Further concerns have been raised after the Scottish Information Commissioner dodged calls to look into the case, after journalists called for a re-examination of how exemptions are used by the Scottish Government where Thompson’s written accusations were then censored under the guise of ‘protecting free and frank discussions between officials’.

A full report and publication of the FOI documents on the controversy around Thompson and the Scottish Government’s FOI release can be found here: Scottish Government request destruction of FOI papers – Files reveal Ministers silence on judicial complaints & civil servants attempts to exclude case histories from Judicial Investigator’s annual reports

Ms Thompson’s predecessor Moi Ali also complained a lack of funds and support had made the role of Judicial Complaints Reviewer “enormously frustrating and difficult”.

Today, it has been reported LibDem MSP Liam McArthur has urged Mr Matheson to review the post of JCR.

In a letter to the Justice Secretary, Mr McArthur said: “The only two holders of the post have both provided blistering accounts of their experiences. In appointing the third JCR the Scottish Government cannot ignore the criticisms of his predecessors and the serious questions that surround the credibility of this office. It is clear that the current system is not working.”

Tory MSP Liam Kerr said: “Given the criticism levelled at the Scottish Government by the former reviewer, it appears her successor has quite a job on his hands.

“If this role is to be a success, ministers have to provide the resources and support necessary. We can’t afford for this to be yet another wasted 12 months.”

Labour MSP Claire Baker added: “It is clear that the new JCR needs far greater support.

“For the SNP to simply announce a new JCR but fail to address any of the serious structural shortcomings in the role is simply unacceptable.

“The Scottish Government cannot hide from their responsibility. They must fully fund and resource the new JCR so that he can carry out his role in the best interests of the public.”

However the biography issued by the Scottish Government on Mr Gordon contains no references to his time as one of the first intake of Board members at the discredited Scottish Legal Complaints Commission.

The SLCC was recently branded as a “toothless waste of time” by former Cabinet Secretary Alex Neil MSP (SNP Airdrie and Shotts) 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 team responsible for setting up the Scottish Legal Complaints Commission and it’s board members in 2008 was led by Angela McArthur, Chief Executive of the Parole Board since December 2009

During Mr Gordon’s time on the board of the Scottish Legal Complaints Commission, the pro-lawyer regulator lurched from controversy to scandal, where media reports revealed board members infighting over dealing with members of the public, campaign groups, and drunken exchanges between board members & senior SLCC staff.

Ministerial Announcement of new Judicial Complaints Reviewer: Judicial Complaints Reviewer appointed

Cabinet Secretary for Justice Michael Matheson has announced the appointment of the third Judicial Complaints Reviewer.

Ian Gordon is a retired Deputy Chief Constable of Tayside Police. He is currently an Acting Commissioner with the Northern Ireland Public Service Ombudsman Office.

He was seconded to HM Inspectorate of Constabulary and was the lead police officer on the annual statutory inspection of five UK police forces, and was a member of the UK Police Professional Standards Group. He has conducted criminal, conduct and complaints investigations in the UK and undertaken enquires abroad on behalf of the Foreign Office.

Mr Gordon was also a Convener for the Standards Commission between 2010 and 2017 and contributed to a focused improvement to awareness of the codes of Conduct by elected members and Boards of Public Bodies.

This appointment was established by the Judiciary and Courts (Scotland) Act 2008 to review, when asked, the handling of a complaints investigation into members of the judiciary, to ensure that it has been dealt with in accordance with The Complaints About the Judiciary (Scotland) Rules 2016. The Reviewer has no powers to consider the merits of any complaint or the disposal of the complaint.

The appointment will be for a period of three years from 1 September 2017 to 31 August 2020, and will be paid a daily fee of £217. The appointment has been made with the approval of the Lord President.

All appointments are made on merit and political activity plays no part in the selection process.

FROM EX-COP TO JUDGING JUDGES – BIOGRAPHY IAN GORDON:

Ian Gordon is listed as Chair on the website of the Ericht Trust and is an active director of the Ericht Trust which is also registered as a company limited by guarantee, managed by a Board of Trustees who are elected at an Annual General Meeting, and a Company Secretary.

The Ericht Trust has since reported in March 2017 to be in the process of changing it’s name to the Erich Trust.

The Ericht Trust describes itself as a ‘not for profit’ charitable organisation, which focuses on community development and regeneration in line with Scottish Government policies on community empowerment. It is a member of Development Trusts Association Scotland (DTAS). DTAS provides support to its members and a link into a network of the many comparable Trusts working for the benefit of their communities across Scotland. Being part of this bigger family gives strength to the organisation when voicing opinion or seeking support from Government and Local Authorities.

The object of the Trust is to stimulate a range of community projects which will benefit residents and businesses and draw visitors to this area.

A register of interests posted by the Scottish Legal Complaints Commission also listed Mr Gordon as a director of Quarere Ltd.

Quaere Limited was set up on 20 Dec 2006 has its registered office in Perthshire. Its current status is listed as “Dissolved”. The company’s first directors were Marion Therese Gordon, Ian Alexander Gordon. Quaere Limited has no subsidiaries.

The company was listed under the headings of SIC 2003:7414 — Business And Management Consultancy Activities & SIC 2007: 70229 — Management Consultancy Activities (Other Than Financial Management)

Last annual accounts of Quarere Ltd were filed in 2009.

Other interests listed in Mr Gordon’s register of interests from his time at the Scottish Legal Complaints Commission include:

• Associate Professor in Policing for Charles Sturt University (Australia).
• Formerly Chair of the Association of Chief Police Officers in Scotland (ACPOS) Professional Standards Business Area.
• Vice-Chair of ACPOS General Policing Business Area.

Previous articles on the Judicial Complaints Reviewer and complaints against Scotland’s judiciary can be found here: Judicial Complaints Reviewer – Reviewing complaints against Scotland’s judiciary

 

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