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JUDGES MUST DECLARE: Holyrood Justice Committee back cross party supported proposal to require Scotland’s judges to declare all financial interests and other links in a publicly available register of judicial interests

Justice Committee issues backing for Judicial Register. A CROSS-PARTY supported proposal to require all members of Scotland’s near 700 strong judiciary to declare and register their financial interests, links to big business and other connections has moved a step closer after MSPs declared their support for Petition PE1458: Register of Interests for members of Scotland’s judiciary

The Justice Committee published a letter from Margaret Mitchell MSP, Convener of Holyrood’s powerful Justice Committee to Scotland’s top judge Lord Carloway – in which Ms Mitchell states: “After this evidence session and a previous one, the Committee is minded to support the principle behind the petition of a judicial register of interests as it has yet to hear a convincing case against.”

The cross party backed judicial register 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.

Support from the Justice Committee to advance the judicial transparency proposal – comes after six years of investigation by the Scottish Parliament’s Public Petitions Committee – who unanimously backed the petition in the face of strong resistance from Scotland’s judiciary, and two years of work by the Justice Committee – who have now gone on the record with their support for a publicly available register requiring all judges in Scotland to declare their interests – in the same way all members of the Scottish Parliament declare their interests.

While in theory, all UK judges including Scotland’s judiciary have a duty to declare all relevant interests in cases they hear in court, a number of serious cases have come to light via media investigations – revealing judges are routinely failing to declare key interests – even when their own family members are before them in court.

In one serious example of a failure to declare interests, Lord Malcolm (real name Colin Campbell QC) heard a damages claim EIGHT TIMES while his own son – Ewen Campbell – represented the defenders in the same court.

The case involving Lord Malcolm generated significant interest as it was not just any ordinary case – it was an appeal linked to a multi million pound damages claim involving defenders represented by a then serving member of the judiciary – (now former Sheriff) Peter Watson – who was later suspended for a record three years plus over his links to a £28M writ involving the £400M Heather Capital Hedge Fund collapse – and then resigned in 2019.

The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest,  is reprinted here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

A number of other cases where judges failed to recuse have also come to light, and cases where the Judicial Office failed to publish recusals – including at least one hearing involving Lord Bracadale (real name Alistair Campbell) – were drawn to the attention of the Public Petitions Committee during their long six year investigation of the proposal calling for a register of judicial interests.

An investigation revealing the Judicial Office altered the Register of Judicial Recusals – one year after Lord Bracadale recused from a case – and only after journalists questioned the Judicial Office on the omission, can be found here: RECUSALS UNLIMITED: Doubts over credibility of register of judges’ recusals – as Judicial Office admit court clerks failed to add details of senior judges recusals – then silently altered records a year later

The full letter from Margaret Mitchell, Convener of the Justice Committee – to Lord Carloway – was published by the Justice Committee as follows:

Dear Lord President,

Petition 1458 – Proposal to establish a register of judicial interests

I write regarding the above Petition which the Justice Committee considered on 19 November. After this evidence session and a previous one, the Committee is minded to support the principle behind the petition of a judicial register of interests as it has yet to hear a convincing case against.

The Committee thanks you for your letter of 23 August 2019 on this subject. However in light of the above, members agreed it wanted to give you the opportunity to relate your views, in person, as to why a register of judicial interests should not be established.

I should be grateful, therefore, if you would indicate whether you, or a representative of the Judicial Office, would be willing to give oral evidence on the petition in the New Year. If so, in order to move forward. I would be grateful if your officials would contact the Justice clerks to discuss a mutually convenient date.

Finally it would be extremely helpful if you would provide further details on your views of what would be involved in establishing such a register and whether this would require primary legislation or could be achieved by some other means through the powers that you have as Lord President.

I look forward to your response. Best wishes,

Margaret Mitchell MSP Convener, Justice Committee

While Scotland’s judiciary have conducted an eight year resistance to proposals to make the judiciary as transparent as elected politicians, other jurisdictions such as Norway, the USA, and other countries have oeprated registers of judicial interests and requirements on judges to publish their financial reports without any issues.

In Norway, judges must complete a register of interests listing honorary posts, investments, memberships of political parties, companies, religious communities and charities among others.

The Norwegian model of judicial interest disclosure was hailed by the Public Petitions Committee as model for Scotland’s judges to follow.

More on Norway’s register of judges’ interests can be found here: NORWAY, M’LORD: Judicial interests register of Norway cited as example to follow for Holyrood MSPs six year investigation to create a register of judges’ interests in Scotland

After hearing evidence from Scotland’s first Judicial Complaints Reviewer (JCR) – Moi Ali in a hearing last November, the Justice Committee have also invited Lord Carloway to attend Holyrood to face further questions on his opposition to judicial transparency.

During that hearing in November, and in response to 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.”

Video Footage of this exchange can be found here:

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

A full report on the Justice Committee evidence hearing with Moi Ali on 19 november 2019 can be found here: 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”

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

EIGHT YEAR JUDICIAL INTERESTS PROBE:

The judicial register petition – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013calls 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

TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL 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: 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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COURT OF SENATORS: Top judge hires FIVE new judges – after claiming register of judges interests creates difficulty in recruitment – papers reveal new judge gave legal advice to Scottish Police Authority secrecy block against ex Board member’s files request for Holyrood Police oversight probe

Five new judges – after Lord Carloway claimed difficulty in recruitment. ONE DAY after Holyrood’s Justice Committee considered claims by Scotland’s top judge that judicial recruitment would be hampered by bringing in a register of judges’ interests – the Judiciary of Scotland have announced five new ‘senators’ for Scotland’s top court – the Court of Session.

The five new judges – Douglas Fairley QC, Anna Poole QC, Sean Smith QC, Robert Weir QC and Sheriff Peter Braid – can expect salaries of up to £215K a year, will gain the terms “Senators of the College of Justice” and will sit in the Court of Session & High Court of Justiciary.

The latest round of judicial appointments – announced one day after Holyrood MSPs discussed claims by Lord Carloway – that raising issues of judicial transaprency may cause him difficulty in recruting judges for the Court of Session and the High Court – come after a raft of judicial appointments in the past few months.

In September, the Judicial Office announced the appointment of seven Summary Sheriffs who can expect a salary of £110,335 per annum – Patricia Prycem Charles Lugton, Roderick Flinn, Sukhwinder Gill, Michael Higgins, Hugh McGinty and Colm Dempsey – to various courts around Scotland.

And in August – the Judicial Office announced the appointment of eight full time Sheriffs who can expect £140,289 a year – Paul Reid, Tony Kelly, Sara Matheson, Joseph Hughes, Fergus Thomson, Colin Dunipace, Mhari Mactaggart and Jillian Martin-Brown – on the recommendation of the First Minister.

Lord Carloway (real name Colin John Maclean Sutherland) – 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 investigating a cross party backed petition calling for a register of judicial interests – Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally filed at Holyrood’s Public Petitions Committee in October 2012.

Lord Carloway’s letter to Margaret Mitchell MSP states “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.”

Among the new appointments to the Court of Session after a closed shop Judicial Appointments Process – is Anna Poole QC – who sat part time as a UK First-tier Tribunal judge (Social Entitlement Chamber) from 2014 and recently took up a judicial position as a salaried judge of the Upper Tribunal of the Administrative Appeals Chamber on 30 April, 2018.

However, a biography published by the Judicial Office for Anna QC  as part of the judiciary’s announcement of the new judicial appointments – omits key details of Ms Poole’s representation of the Scottish Government, Crown Office & Procurator Fiscal Service (COPFS), the Scottish Police Authority (SPA) and others, in cases and issues which have been of significant public interest and concerns – and would be expected to be entered in a register of judges’ interests – if one existed.

Details of Ms Poole’s previous legal representation of one controversial public authority were revealed in papers obtained from the Scottish Police Authority (SPA) via Freedom of Information reques.

The information disclosed by the Scottish Police Authority reveals the same Anna Poole QC was engaged by the SPA to provide ‘supplementary legal advice’ for the controversial Police Regulator’s successful attempt to block a request from former board member Moi Ali for access to information.

The Scottish Police Authority initially did not disclose the identity of the QC in response to the FOI request – and only did so after a review was requested of their decision to keep Ms Poole’s identity a secret.

The Scottish Police Authority eventually revealed it had also shared parts of the legal advice with the Scottish Government – who were also criticised by MSPs for their role in poor management at the Scottish Police Authority.

Information released under Freedom of Information by the SPA’s Information Management team disclosed: The SPA can confirm that legal advice was sought from DLA Piper, Solicitors, in relation to the SPA holding Committee meetings in private. The cost of this legal advice came to a total of £1,408.68 (inc VAT).

The SPA can also confirm that legal advice was sought from DLA Piper, Solicitors, in relation to a request for information from Ms Ali.

The cost of this legal advice came to a total of £5,875.08 (inc VAT). Parts of this legal advice procured by the SPA was shared with the Scottish Government.

In addition, the SPA obtained supplementary legal advice in relation to this issue. The cost of this supplementary legal advice came to a total of £4,800.00 (inc VAT).

The information contained in the legal advice procured by the SPA as aforesaid is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002.

Sections 36(1) of the Freedom of Information (Scotland) Act 2002 is not absolute exemption and as such, the public interest in disclosing the information must be weighed up against the public interest in maintaining the exemption.

Section 36(1) Public interest considerations favouring disclosure:

Disclosure would provide an understanding around the decision making in relation to the above matters.

Section 36(1) Public interest considerations favouring non-disclosure:

Disclosure of the information requested could prejudice the effective operations of SPA. SPA staff have to be able to discuss certain matters behind closed doors, with an expectation of privacy in those discussions. If that expectation were to be eroded it may affect the free and frank exchange of views and as such inhibit decision making.

In response to the request for review of the decision to keep the QC’s identity a secret, the Scottish Police Authority disclsoed the identity of Anna Poole QC as a provider of ‘further legal advice’.

The SPA’s Information Management Team stated: Having carried out a review of the initial response I am satisfied that the information contained in the legal advice procured by the SPA is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002, we therefore uphold this part of the response.

I can advise that Miss Anna Poole QC was instructed to provide further legal advice.

In response to a second FOI request, the Scottish Police Authority disclosed further information revealing they had shared the legal advice with the Scottish Government.

The Scottish Police Authority disclosed the following: The SPA can also confirm that legal advice was sought from DLA Piper, Solicitors, in relation to a request for information from Ms Ali.

Parts of this legal advice procured by the SPA was shared with the Scottish Government.

In addition, the SPA obtained supplementary legal advice in relation to this issue.

The information contained in the legal advice procured by the SPA as aforesaid is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002.

Sections 36(1) of the Freedom of Information (Scotland) Act 2002 is not absolute exemption and as such, the public interest in disclosing the information must be weighed up against the public interest in maintaining the exemption.

Section 36(1) Public interest considerations favouring disclosure:

Disclosure would provide an understanding around the decision making in relation to the above matters.

Section 36(1) Public interest considerations favouring non-disclosure:

Disclosure of the information requested could prejudice the effective operations of SPA. SPA staff have to be able to discuss certain matters behind closed doors, with an expectation of privacy in those discussions. If that expectation were to be eroded it may affect the free and frank exchange of views and as such inhibit decision making.

And your further response of 13th November:

I can advise that Miss Anna Poole QC was instructed to provide further legal advice.

The SPA are the owner of the legal advice shared with the Scottish Government, and therefore we are not required to seek permission should we wish to disclose to a third party.

The Scottish Government did not advise of any further disclosure.

The information access request by former SPA Board member Moi Ali – who resigned from the Scottish Police Authority after raising concerns regarding the SPA’s lack of transparency – came prior to hearings hearing of the Scottish Parliament’s Public Audit & Post Legislative Scrutiny Committee (PAPLS)

Video footage of Ms Ali raising concerns during an SPA Board meeting – concerns which ultimately led to the Scottish Parliament’s investigation of the Police Authority which provides oversight of Police Scotland, can be found here: Scottish Police Authority 15 December 2016 meeting Governance framework discussion

Issues raised by Moi Ali in relation to the Scottish Police Authority were taken on by the Scottish Parliament’s Public Audit and Post Legislative Scrutiny Committee, leading to hearings and ultimately, the resignation of the SPA’s Chairman Andrew Flannagan, and the exit of Chief Executive John Foley which is covered in more detail here: GONE EXEC’IN: Scottish Police Authority Chief Executive takes early retirement with pay-off, following resignation of ‘Kremlin’ Chair Andrew Flanagan – discredited board & Vice Chair who backed secretive top duo remain in posts.

A full report on the resignation of Andrew Flanagan, Chair of the Scottish Police Authority, can be found here: GONE KREMLIN: Chair of Scottish Police Authority resigns, lingers in office ‘until replacement found’ for discredited Police watchdog – focus now moves to ‘collective amnesia’ board who failed to support transparency crusading colleague

Video footage of a key hearing by the Public & Post Legislative Scrutiny Committee held on 20 April 2017 can be found here: Scottish Police Authority – Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 20th April 2017

A full report on the PAPLS meeting of 20 April 2017 can be found here: POLICING SECRETS: Former Scottish Police Authority board member Moi Ali invited to give evidence at Holyrood, after MSPs accuse SPA bosses of running Police watchdog like Kremlin ‘secret society’

A further appearance of current and former board members of the Scottish Police Authority before Holyrood’s PAPLS Committee on the 11th May2017  – established evidence in relation to a sequence of alarming events at the SPA – giving MSPs significant cause for concern of how the SPA Chair was in effect, personally running the Police watchdog as a “secret society”. Video footage of this hearing is available here: Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 11th May 2017

A full report on the PAPLS hearing of 11 May 2017 can be found here: UNFIT AUTHORITY: Chair of Scottish Police Authority “is not fit to continue on any public board” – says former SPA board member in evidence to Holyrood’s Public Audit Committee scrutiny of Police watchdog


Writing to the Convener of the Justice Committee – Scotland’s top judge Lord Carloway – claimed that raising the issue of a register of judges’ interests would create difficulties in recruiting judges, yet the day after Holyrood MSPs discussed Carloway’s letter, the Judicial Office announced five new judges for the Court of Session.

Lord Carloway’s  letter in full: Lord Carloway’s letter to Margaret Mitchell MSP

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.

FIVE NEW COURT OF SESSION & HIGH COURT OF JUSTICIARY SENATORS FOR LORD CARLOWAY:

New judges appointed

Five new Scottish judges have been appointed and will take up position next year.

Her Majesty the Queen, on the recommendation of First Minister, has appointed Douglas Fairley QC, Anna Poole QC, Sean Smith QC, Sheriff Robert Weir QC, and Sheriff Peter Braid as Senators of the College of Justice.

Douglas Fairley QC and Anna Poole QC will take up appointment on 13 January 2020; Sean Smith QC will take up appointment on 17 February 2020; Sheriff Robert Weir QC will take up appoint on 6 April 2020; and Sheriff Peter Braid will take up appointment on 22 June 2020.

Douglas Fairley QC

Douglas Fairley was educated at Hutchesons’ Grammar School and Glasgow University. He graduated in 1989 with a First Class Honours LL.B. After combining a legal traineeship with part-time work as a professional orchestral clarinettist, he then worked as a solicitor for six years between 1992 and 1998. He called to the Bar in 1999, specialising in commercial and employment litigation. He has served as an employment judge in both Scotland and England (2009-2011), and as an advocate depute (2011-2015). He took silk in 2012 and, since 2015, has continued to work on a wide range of high-profile civil cases.

Anna Poole QC

Anna Poole was educated at Madras College, St Andrews and Oxford University. In 1996 she qualified as a solicitor (England and Wales) at Linklaters in the City of London, then as solicitor (Scotland) at Brodies. She called to the Scots bar in 1998. She became a QC in 2012, after serving as First Standing Junior Counsel to the Scottish Government. She sat part time as UK First-tier Tribunal judge (Social Entitlement Chamber) from 2014, and as arbitrator for MIB cases. In 2018, she was appointed UK upper tribunal judge (Administrative Appeals Chamber), sitting in Edinburgh and London. She is Chancellor of the Dioceses of Edinburgh and Argyll and the Isles.

Sean Smith QC

Sean Smith was educated at Flora Stevenson’s and at Broughton High School, Edinburgh. A graduate of Glasgow University, he was a fellow and lecturer in law at Emmanuel College, Cambridge between 1991 and 1996. He was admitted to the Faculty of Advocates in 1999, and took silk in 2012. He has been Standing Junior Counsel, variously, to the Scottish Government, to HMRC, and to the Office of the Advocate General. Between 2017 and 2019 he served as advocate depute.

Robert Weir QC

A graduate in both history and law, Sheriff Weir served his traineeship with Maclay Murray and Spens, Solicitors, before being admitted to the Faculty of Advocates in July 1995. He served as an advocate depute between 2005 and 2008, took silk in 2010, and was appointed a floating sheriff of South Strathclyde Dumfries and Galloway, based at Hamilton Sheriff Court, in April 2015. He has served as a temporary judge of the Court of Session since March 2017, and took up a position as a resident sheriff at Edinburgh Sheriff Court in April 2018, sitting as one of the specialist sheriffs in the All Scotland Sheriff Personal Injury Court.

Peter Braid

Educated at George Watson’s College, Sheriff Braid graduated from Edinburgh University in 1980 with first class honours, winning the Lord President Cooper prize for best student. He entered the solicitor branch of the profession, becoming a partner in Morton Fraser in 1985 and a solicitor-advocate in 1995, dealing predominantly with commercial litigation. He was appointed as a sheriff in 2005 and currently sits in Edinburgh. In 2015, he was appointed as one of the first appeal sheriffs in the Sheriff Appeal Court, and as a designated Personal Injury sheriff.

NEW SHERIFFS IN COURT

Paul Reid is a law graduate of the University of Strathclyde. In 1985 he started as trainee then assistant and latterly associate with Jno. Shaughnessy Quigley and McColl, Glasgow. He is a founding partner of Fleming and Reid, Solicitors Glasgow. He enjoys Rights of Audience before the High Court of Justiciary, the Court of Session and the Supreme Court. In 2009 he was appointed a part time Sheriff. He has previously held membership of the Scottish Civil Justice Council. He is presently a member of the Scottish Legal Aid Board.

Tony Kelly was appointed Summary Sheriff of Glasgow and Strathkelvin in 2016. A law graduate of the University of Strathclyde, he started his traineeship in 1990 with Messrs. Hannay, Fraser & Co, Solicitors, before becoming associate and then partner. Between 1997 and 2016 he worked with Taylor & Kelly, Court Solicitors in Coatbridge. He was granted Rights of Audience as a Solicitor Advocate in both the Court of Session and High Court of Justiciary in 2012. He was a First-Tier tribunal judge in the Social Entitlement and Immigration and Asylum Chambers. Mr Kelly is a visiting Professor in Human Rights in the University of Strathclyde and a Legal Member of the Parole Board for Scotland.

Sara Matheson graduated in law from Aberdeen University and qualified as a solicitor in 1992. She became accredited as a specialist in child law in 2005 and in family law in 2008.  Ms Matheson was appointed as a Convenor of the Additional Support Needs Tribunal in 2008 and was a founding partner of MTM Family Law in 2012. She was President of the Glasgow Bar Association in 2008 and was appointed as a Summary Sheriff at Airdrie in 2016.

Joseph Hughes is a law graduate of Edinburgh, Glasgow and Strathclyde Universities. Since 1986 he has been Managing Partner of J C Hughes Solicitors Glasgow. From 2004 he was appointed to the Mental Health Tribunal for Scotland, Health and Education Chamber, Pension Appeals Tribunals for Scotland, Scottish Solicitors Discipline Tribunal, NHS Tribunal for Scotland, Police Appeals Tribunal, Housing and Property Chamber, General Regulatory Chamber (Charity), Institute and Faculty of Actuaries Disciplinary Panel, Scottish Housing Regulator Appeals and SFA Disciplinary Judicial Panel. Mr Hughes has also held a number of non-executive, public and charitable positions.

Colin Dunipace is an Honours graduate of the University of Strathclyde. He began his career in 1988 with Barrowmans in Cumbernauld before establishing Dunipace Brown, Solicitors in 1993, where he remains a partner. He was granted extended Rights of Audience as a Solicitor-Advocate in the High Court in 2002. Mr Dunipace was a Council and Board member of the Law Society, and became a part-time Stipendiary-Magistrate in 2010 before appointment as a part-time Summary Sheriff in 2016. Since 2013 he has sat on various Tribunals, including as a fee-paid Judge of the Immigration and Asylum Chamber and being a Board Member of the SCCRC.

Fergus Thomson is a law graduate of the University of Edinburgh. He trained with Bell & Scott WS and qualified as a solicitor in 1996. He worked initially as a banking solicitor, with Dundas & Wilson and Maclay, Murray & Spens, and subsequently in litigation with DLA Piper. He also worked in structured finance with Bank of Scotland.  He was called to the Bar in 2004. A Writer to the Signet and Fellow of the Chartered Institute of Arbitrators, Mr Thomson is currently an Advocate in primarily civil practice.

Mhari Mactaggart is a law graduate of the University of Glasgow. She started as a trainee and became a partner with Robert Carty & Co in 1985. Ms Mactaggart then joined Milligan Mactaggart & Perkins Solicitors as a partner before becoming a senior partner with Mhari S Mactaggart Family Law Practice in 1996. Ms Mactaggart was appointed Part-time Sheriff in 2005. She went on to join Hamilton Burns WS in 2008 as a Consultant and Head of Family Law Team and in 2016 was appointed a Summary Sheriff in Ayr.

Jillian Martin-Brown was appointed as a summary sheriff in Tayside, Central and Fife in 2016. She has particular responsibility for the Problem Solving Court in Forfar. Prior to her appointment, she was a solicitor in private practice, representing the Scottish Prison Service at fatal accident inquiries throughout Scotland. She later worked as an advocate, developing particular expertise in the fields of personal injury and medical negligence. She was appointed as Standing Junior Counsel to the Scottish Government and served as an ad-hoc Advocate Depute for the prosecution service.

The Judicial Appointments Board for Scotland is an independent advisory public body with the role of recommending individuals for appointment to judicial offices within the Board’s remit including judge of the Court of Session, chair of the Scottish Land Court, sheriff principal, sheriff, and summary sheriff.

The First Minister has statutory responsibility for making recommendations to Her Majesty the Queen and is required by statute to consult the Lord President of the Court of Session before making her recommendation.

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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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

Need for Judges’ Register. MEMBERS of the Scottish Parliament’s powerful Justice Committee have committed to further work and action on a cross-party backed petition calling for the creation of a register of judges’ interests – Petition PE1458: Register of Interests for members of Scotland’s judiciary

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.

Amid strong comments during last Tuesday’s Justice Committee meeting from MSPs supporting the need for action on judicial transparency from the seven year Scottish Parliament investigation – the Committee also decided to call for further evidence from Moi Ali – Scotland’s first Judicial Complaints Reviewer, and Scotland’s top judge – Lord President Lord Carloway.

Commenting on the petition – John Finnie MSP made extensive observations on evidence presented to Justice Committee exposing involvement of senior Scottish judges in the Gulf States, and submissions from Moi Ali, and Justice Secretary Humza Yousaf.

John Finnie said: “It is very helpful to have all this information here. “There are a number of suggestions. I, for one, cannot understand what the problem with having a register would be.”

“The more people tell me that there is no issue, the more I am convinced that there is a need for a register. The submission from Moi Ali is very helpful. She refers to a letter of 23 April 2014, which is now a bit old.”

“We have also been provided with extracts from news coverage.”

“I do not agree with the idea that anyone connected with the Scottish judiciary could have any role whatsoever in the United Arab Emirates.”

“I looked yesterday at the Human Rights Watch world report, which does a country by country breakdown. The United Arab Emirates is a country that is intolerant of criticism, which has played a leading role in unlawful acts in Yemen, and whose treatment of migrant workers’ rights and women’s rights is shocking. It is a country that permits domestic violence.”

I do not think that any reasonable examination of the role of a public official—and I get the point about the separation of the judiciary—would say that involvement in such a country is acceptable.”

“I believe that we need to do something and I am not content with the cabinet secretary’s response, which is just playing out the same line as before—that there is nothing to see here and we should move on.”

“I do not think that this issue will move on until we have the openness and transparency that people rightly expect of public office.”

Adding to the debate, Daniel Johnson MSP referred to the Nolan principles, from the Committee on Standards in Public Life

Daniel Johnson said: I would like to speak in support of what my colleague John Finnie has just said.

“The Nolan principles are 25 years old this year. They are principles that have guided public life very well, in particular integrity, whereby holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties”;

“openness, which I think is self-explanatory; and honesty, whereby”

“holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest”.

“That is pretty clear. Although the cabinet secretary may well not view that there is a problem, that is not to say that this is not a positive step towards ensuring that we have a judiciary that is open and transparent and whose integrity is beyond question.”

“I absolutely believe in the independence of the judiciary, but I think that in order to maintain that integrity and independence, this step has merit in terms of transparency.

“The committee should think about taking some further evidence, certainly from Moi Ali, which is the suggestion from the petitioner. This is something that we should progress and seek to move forward.”

Liam Kerr added: “I am pretty much in the same place on this. I can see the argument for why we would take this further and hear more.”

“I have looked at the response from the cabinet secretary and the reference to the previous cabinet secretary, whose view has been that there is nothing particularly to examine here.”

“Having considered the force of the argument in favour of exploring it further, I am not convinced that it is good enough to say, “There is nothing here. Don’t worry about it.”

For that reason, I think that we should look at this in more detail.

Liam McArthur said: “I echo what Daniel Johnson has said and much of what John Finnie has said.”

“In reference to the United Arab Emirates, although I might share many of his concerns, I think that the point is that a register would be illuminating”

Minutes from the meeting reveal the Justice Committee agreed to take evidence at a future meeting on issues raised by the petition – which will occur later this year in September.

Video from the Justice Committee meeting, the full official transcript and further reporting follows:

Register of Judicial Interests Petition PE1458 Justice Committee 28 May 2019

Judiciary (Register of Interests) (PE1458)

The Convener (Margaret Mitchell MSP): Our final item is consideration of petition PE1458. The petition is from Mr Peter Cherbi and asks the committee to consider the merits of establishing a register of interests for members of the judiciary. I refer members to paper 4. Since we considered the petition last time, we have received additional information from Mr Cherbi and also from Moi Ali. We have also received a letter from the Cabinet Secretary for Justice. I invite members to comment on the correspondence and say whether they wish to make any recommendations or suggest further action.

John Finnie MSP: It is very helpful to have all this information here. There are a number of suggestions. I, for one, cannot understand what the problem with having a register would be. The more people tell me that there is no issue, the more I am convinced that there is a need for a register. The submission from Moi Ali is very helpful. She refers to a letter of 23 April 2014, which is now a bit old.

We have also been provided with extracts from news coverage. I do not agree with the idea that anyone connected with the Scottish judiciary could have any role whatsoever in the United Arab Emirates.

I looked yesterday at the Human Rights Watch world report, which does a country by country breakdown. The United Arab Emirates is a country that is intolerant of criticism, which has played a leading role in unlawful acts in Yemen, and whose treatment of migrant workers’ rights and women’s rights is shocking. It is a country that permits domestic violence.

I do not think that any reasonable examination of the role of a public official—and I get the point about the separation of the judiciary—would say that involvement in such a country is acceptable.

I believe that we need to do something and I am not content with the cabinet secretary’s response, which is just playing out the same line as before—that there is nothing to see here and we should move on. I do not think that this issue will move on until we have the openness and transparency that people rightly expect of public office.

Daniel Johnson MSP: I would like to speak in support of what my colleague John Finnie has just said.

The Nolan principles are 25 years old this year. They are principles that have guided public life very well, in particular integrity, whereby

“holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties”;

openness, which I think is self-explanatory; and honesty, whereby

“holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest”.

That is pretty clear. Although the cabinet secretary may well not view that there is a problem, that is not to say that this is not a positive step towards ensuring that we have a judiciary that is open and transparent and whose integrity is beyond question.

I absolutely believe in the independence of the judiciary, but I think that in order to maintain that integrity and independence, this step has merit in terms of transparency. The committee should think about taking some further evidence, certainly from Moi Ali, which is the suggestion from the petitioner. This is something that we should progress and seek to move forward.

Liam McArthur MSP: I echo what Daniel Johnson has said and much of what John Finnie has said. In reference to the United Arab Emirates, although I might share many of his concerns, I think that the point is that a register would be illuminating and, if there is a justification in engaging in order to improve the way in which judicial procedures operate in a third country, at least we would all know what the purpose of that engagement is.

I very much concur with what has been said about the need for transparency and the underpinnings of the Nolan principles.

I see from the Scottish Courts and Tribunals Service the details of the accountability report. I am not sure that that is a massive leap away from what the petition is seeking, and therefore this may be a bit of a journey that it is on, but I certainly agree that it would be worth the committee continuing to pursue this, and to take further evidence from Moi Ali.

That would seem to be a logical next step, as John Finnie suggested. The earlier evidence was in written form. It was a number of weeks ago. I believe that it would probably benefit us all to hear what she has to say and cross-examine that a little further. I would be very keen to keep the petition open.

Liam Kerr MSP: I am pretty much in the same place on this. I can see the argument for why we would take this further and hear more. I have looked at the response from the cabinet secretary and the reference to the previous cabinet secretary, whose view has been that there is nothing particularly to examine here. Having considered the force of the argument in favour of exploring it further, I am not convinced that it is good enough to say, “There is nothing here. Don’t worry about it.” For that reason, I think that we should look at this in more detail.

Fulton MacGregor MSP: I echo what others have said. John Finnie in particular made a very compelling argument for doing something further on this. Some people have commented on the cabinet secretary’s response. It is not my take on it that he is saying that there is nothing to see here, but I think that we should take more evidence and information in order to work out where to go from here. I agree with what has been said.

The Convener (Margaret Mitchell MSP): If there are no other views, I will summarise. The committee is keen to hear from Moi Ali. Her letter was dated in 2014, but she has said that it is still relevant. It would be good to get an update. The Nolan principles are 25 years old, so perhaps it is time to take some evidence from Lord Carloway, if he is prepared to give a view, and certainly from the petitioner, and to give the cabinet secretary an opportunity to respond more fully than he did in his letter. If there are any other witnesses, we will be looking to do this in September. Are we agreed that that is how we will move forward?

Members indicated agreement.

CROSS-PARTY calls are being made for all of Scotland’s judges to declare their interests:

The issue of judicial transaprency and calls for judges to declare their interests was reported in more detail on Scottish Television (STV) – full article by visiting the link here: Scots judges facing pressure to declare their interests

The STV report states: Cross-party politicians on Holyrood’s justice committee believe that increased transparency is vital to maintain public trust in the judiciary.

The committee will call Moi Ali, the former Judicial Complaints Reviewer and current Independent Assessor of Complaints at the Crown Prosecution Service, to give evidence.

She told STV News: “This is the 21st century and people have quite high expectations of openness and transparency.

“I don’t really understand why one small but very powerful section of society should be allowed not to have to do that. It really doesn’t make sense.”

SNP MSP Alex Neil plans to introduce legislation if a register is not introduced.

An in-depth investigation on judicial conflicts of interest and the need for a register of judicial interests to increase public trust in the courts, is featured on STV (full article by visiting the link below)

 Judging for ourselves if conflict of interest in courtsBy Russell Findlay

“Most people would struggle to name Scotland’s top judge or many of the other 700-plus judicial office holders who preside in our civil and criminal courts.”

“His grand title is Lord President of the Court of Session and Lord Justice General (previously Colin Sutherland, lawyer) and one of his jobs is to take the swearing-in oath of First Ministers.”

“Yet he and these other largely unknown judges, sheriffs and justices of the peace hold great power – including being able to send people to prison – and their decisions directly or indirectly impact on all our lives.”

“However, there are growing concerns about how little we know about their outside interests and concerns that these could potentially influence decisions on the bench.”

SCOTTISH JUDGES SERVING IN THE GULF STATES:

An exclusive investigation by Investigative Journalist Russell Findlay revealed Scottish judges were serving in Abu Dhabi & UAE courts while serious Human Rights abuses were taking place against British citizens in the same countries.

The investigation also reveals how Scottish and UK judges are lured to the UAE, Abu Dhabi, and Qatar with big money salaries are available here: JUDGES FOR SALE: Special investigation into top lawmen being lured with big money jobs in Qatar and the UAE and here: Scottish judges slammed for being on payroll of oppressive regimes abroad

The report reveals TOP judges are accused of selling the reputation of Scottish justice by working for Middle East countries with toxic human rights records.

Two judges are on the payroll of the United Arab Emirates (UAE) where domestic violence against women is legal and where regime critics are tortured and jailed without trial.

The most senior is Lord Hope of Craighead — Scotland’s former top judge, a member of the House of Lords and ex-deputy president of the UK Supreme Court.

Our investigation found that Lord McGhie has been registered to sit in the UAE for the past two years while he was also dispensing justice at the Court of Session in Edinburgh.

In recent years, retired UK judges have been increasingly lured with big paycheques to new civil courts in Qatar and the UAE states of Abu Dhabi and Dubai.

Lord Hope is chief justice of Abu Dhabi Global Market Courts which also employs Lord McGhie and six other male judges from the UK and Commonwealth.

Another former Lord President, Lord Hamilton, sits in a court in Qatar which is accused of backing international terrorism and using migrant slave labour.

The Justice Committee’s meeting of Tuesday 28 May 2019, was also reported in The National newspaper, here:

Holyrood committee advance plans for register of judges’ interests

By Martin Hannan Journalist 29 May 2019

SCOTLAND’S judges may soon have to register their interests after the Scottish Parliament’s Justice Committee yesterday defied Justice Minister Humza Yousaf and Scotland’s most senior judges on the issue of transparency.

Seven years after he raised a petition on the issue, journalist and legal issues campaigner Peter Cherbi admitted last night he was surprised that Holyrood’s Justice Committee were going to keep his petition “live” and take the matter up with Scotland’s most senior judge, the Lord President, Lord Carloway.

Justice Minister Yousaf had told MSPs a register of interests was not necessary. Lord Carloway and his predecessors have also opposed it.

Cherbi told The National: “I am happy to hear that the Justice Committee are taking this petition forward and the supporting comments from MSPs today who clearly understand the value of bringing a register of interests to Scotland’s courts.

“Thanks to media coverage, including in the National, the issue has remained in the public eye and interest for seven years, and public debate has led to people asking why judges should exempt themselves from transparency and accountability – which are the core principles of any justice system.

“The benchmark evidence from Scotland’s first judicial complaints reviewer, Moi Ali, contributed in great measure to how the Public Petitions Committee took the work forward, with MSPs backing the petition in a major debate at Parliament, and through the seven years of work by the Public Petitions Committee.

“Perhaps it is now time for our judiciary to reflect on why they have resisted calls for transparency for seven long years.

“Where the Lord President and Scottish Government have failed to act, I look forward to the Justice Committee moving forward on this issue, and creating legislation for a publicly available register of judges’ interests, with proper rules and full, independent scrutiny in a manner which is equivalent to the register of interests which many other public servants, including our elected representatives and Scottish ministers, must sign up to.”

NOLAN PRINCIPLES

The 7 principles of public life apply to anyone who works as a public office-holder. This includes people who are elected or appointed to public office, nationally and locally, and all people appointed to work in:

  • the civil service
  • local government
  • the police
  • the courts and probation services
  • non-departmental public bodies
  • health, education, social and care services

The principles also apply to all those in other sectors that deliver public services.

1. Selflessness: Holders of public office should act solely in terms of the public interest.

2. Integrity: Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.

3. Objectivity: Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.

4. Accountability: Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

5. Openness: Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.

6. Honesty: Holders of public office should be truthful.

7. Leadership: Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.

They were first set out by Lord Nolan in 1995 and they are included in the Ministerial code.

For further information on the 7 principles and the work of the Committee on Standards in Public Life, visit the Committee’s website and blogsite.

SEVEN YEARS 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.

TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL 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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