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ECO-JUNKETS: Scotland’s Environment regulator SEPA spends £53k & more time on overseas trips, hospitality & junkets in one year – than going after corporate polluters & illegal dumping

Green regulator spends more time in air than going after polluters. SCOTLAND’S ‘guardian of the environmental’ spends more time in the air on overseas trips and forking out public cash for junkets & air travel than going after polluters & construction companies caught dumping highly contaminated material across sites including housing estates and farmland across Scotland.

Records obtained via Freedom of Information reveal the Scottish Environment Protection Agency (SEPA) spent £53k in just one year on overseas air travel and expenses associated with the trips, on destinations all across the globe for ‘some’ of the agency’s 1,200 staff.

Additional records disclosed to a media investigation, and now published in this article include a lengthy hospitality register, with entries detailing dinners and events on offer from industries, companies and lobby groups often accused of damaging the environment such as Whisky distilleries.

SEPA staff also attended dinner & hospitality events provided by an alcohol industry lobby group – the Scotch Whisky Association – who bitterly fought against the Scottish Government’s plans for minimum alcohol pricing.

While SEPA staff were being wined, dined & given hospitality by Whisky producers, the green watchdog condemned seven Scotch whisky distilleries for their failure to meet pollution guidelines.

SEPA – Documents reveal Overseas flights & expenses: SEPA – Overseas Expenses 2011 to 2016

SEPA – Documents reveal Gifts & Hospitality:  SEPA – Gifts & Hospitality Register 2011-2016

A report in the Sunday Herald revealed : Diageo, the £11 billion drinks giant and world-leading whisky producer, has admitted breaching seven out of eight of its environmental targets to cut pollution and waste.

One of Diageo’s most polluting plants – with some of the highest emissions of any industrial site in Scotland – is the Cameronbridge grain distillery at Leven in Fife. The plant’s carbon dioxide pollution has risen in recent years to a record high.

SEPA’s latest pollution inventory shows that the distillery belched out 134,211 tonnes of carbon dioxide in 2013. Emissions were the highest they had been for ten years, rising every year from 2009 to 2013.

The high mileage hospitality ridden environmental regulator once came under the responsibility of former Environment Minister, Paul Wheelhouse MSP.

Mr Wheelhouse, who later moved to a legal affairs portfolio, attended an evidence session at the Scottish Parliament’s Public Petitions Committee. Mr Wheelhouse went onto claim judges should not declare their interests claim judges should not declare their interests because SEPA staff had allegedly faced threats from gangsters.

However, an investigation by the Sunday Herald newspaper debunked the gangster claims by Wheelhouse – after documents passed to journalists revealed no instances of gangster threats, although one SEPA official had faced a farm gate being slammed shut.

SEPA also faced widespread criticism in the media after environmental journalist Rob Edwards revealed the Scottish Environment Protection Agency had kept the locations of 87 polluters a secret, enabling mistakes to be covered up.

In an assessment of environmental performances for 2013, SEPA had refused to identify 1,187 water suppliers and 287 sites handling radioactive materials “for reasons of national security“. But it has rated 83 of the water suppliers and four of the radioactive sites as “poor” or “very poor”.

An ongoing media investigation into the dumping of contaminated waste by Advance Construction Ltd in areas covered by North Lanarkshire Council, has established the Scottish Environment Protection Agency appears to have turned a blind eye to multiple instances of fly tipping and dumping by a variety of companies including Advance.

Papers passed to journalists appear to include warning letters from SEPA on the dumping of material by the firm, yet no action appears to have been taken.

The Scottish Sun on Sunday reports on expenses junkets, & overseas trips of SEPA:

GLOBEROTTERS: Quango blasted over green junket flights

SEPA racks up 420,000 miles in jets in 3 years: Staff travel same as journey to moon and back

Exclusive By RUSSELL FINDLAY Scottish Sun 05 April 2015

JETSETTING civil servants racked up 420,000 air miles in just three years flying on international jaunts to discuss green issues.

Scottish Environment Protection Agency staff took hundreds of trips to destinations like Nairobi in Kenya, Dubai, Thailand, New York and Canada — often to talk about climate change.

And they flew to European conferences held in the likes of Paris, Dublin, Rome, Malta and Copenhagen — covering enough ground to fly to the Moon or 17 times around the earth.

Campaigners blasted the taxpayer funded quango for its globetrotting. Green MSP Alison Johnstone, far right, said: “Sepa do an important job but I’d urge them to think carefully about whether such extensive air travel is necessary to carry out their work.

“I’d be interested to see a breakdown of what these flights were for. “Government agencies should be leading by example if they’re serious about reducing transport emissions.”

Staff travelled to pow-wows such as the “Strategic meeting towards an enhanced coordination of environmental crime prosecutions across the EU” in Amsterdam, and the European Reservoir Safety Regulation forum in Trondheim, Norway.

Eben Wilson, of Taxpayer Scotland, said: “Sepa is finding things to do abroad when it should focus on the local environment in Scotland.

“Overseas jollies which may seem valuable to Sepa really don’t gel with what the public think environmental protection should be about.”

The green watchdog has a £40million annual budget for carrying out duties including monitoring of air and water, enforcing green regulations on businesses and issuing flood warnings.

The agency’s 1,200 staff are led by outgoing £110,000-a-year chief exec James Curran, below left.

Its annual statement says: “It is our duty as an agency promoting low carbon growth to set a good example. “We have continued to look for ways to reduce greenhouse gas emissions from our business travel.

“Our success in reducing the use of domestic flights by 96 per cent since 2006 was praised during the year in a report by Transform Scotland.”

But the report does not mention international flights taken between April 2011 and March 2014 uncovered by The Scottish Sun.

Sepa insisted the mileage was only 352,000 and added: “In order to protect the wider environment and tackle environmental crime, staff have to work with other countries.

“Our experience and expertise are held in high regard internationally.

“Overseas travel is authorised by senior management and the decision balances environmental benefits of the work with the impact of travel.”

and all for the environment DUBLIN – Common Implementation Strategy (CIS) Working Group C – WFD Groundwater AMSTERDAM – Strategic Meeting “Towards an enhanced coordination of environmental crime prosecutions across the EU: the role of Eurojust” PARIS – Carbon Capture and Storage (CCS) Interest Group of NEPA (CCSIG) MALTA – 5th IMPEL conference on implementation and enforcement of environmental legislation: “Working together to improve and innovate” COPENHAGEN – Citizen Science Workshop GOTHENBURG – Scotland/Sweden District Heating Mission NAIROBI – Interpol Environmental Compliance and Enforcement Committee (ECEC) TRONDHEIM – European Reservoir

SEPA: Junket ridden agency puts freebies before environment

In material published on their website, SEPA claims to be a “high performance organisation”

The regulator states: “We will continue to transform our approach to environmental protection, with an aspiration of delivering world- leading services for the people of Scotland. This will be enabled, in part, by the Regulatory Reform (Scotland) Act and we will continue to work closely with the Scottish Government on regulatory reform. We will be making some significant improvements to how we set ourselves up to deliver our services, informed by work we have carried out on organisational design. This will help us to improve delivery and provide better value for money.”

“We will continue to improve our own business processes, so that our services are recognised as excellent. Our new digital strategy will ensure that technology helps us improve our customers’ experience. We will also help communities to participate in the key decisions that affect them.”

“Our people are at the heart of our success as their knowledge and expertise is our greatest asset. Our goal is to transform into an organisation that people are clamouring to work for. We value diversity in our workforce as it brings a range of talents and perspectives. Over the next few years our key focus will be on developing our staff to create an organisation that lives our six Organisational Characteristics.”

“As we change our ways of working, our estate needs to be flexible; as we modernise our estate we will continue to provide the best working environment we can for our staff and we will seek to share our buildings with partners wherever possible.”

SEPA priorities for this year

• Enabling delivery of high quality, consistent and customer-focused services

• Developing and retaining high performance people

SEPA ON CLIMATE CHANGE, NO MENTION OF JUNKETS:

Further promotional material on the SEPA website states: “Scotland is preparing for a sustainable future and is taking steps to limit climate change Society on earth has progressed to the point where we live as if we had three to four planets to exploit. We don’t have three to four planets; we have one planet with a growing population and depleting resources. For everyone to be able to enjoy a good standard of living, now and in the future, we need to ensure that we do not develop in ways that destroy our ecosystems, because that will undermine our potential for future development.”

“The three pillars of sustainable development are the economy, society and the environment. The role of a 21st century environment protection agency is to find ways to advance the goals of all three at the same time. To achieve this we will increase our engagement with businesses and communities to understand their goals, and to show them how focusing on sustainable development can help them achieve those goals. We want to play our part in helping communities see the environment as an opportunity to create social and economic success. We also want to work with our partners to help businesses realise the benefits of taking an approach that reduces carbon, water use,materials use, and waste production.”

“Through our leadership role, we will do everything in our power to help Scotland address climate change to ensure its environment, economy and communities flourish. Our advice and regulatory activity is based on sound scientific evidence allowing us to help Scotland both reduce and adapt to the effects of climate change. Our work will help Scotland achieve its ambitious greenhouse gas emission reduction targets, and support the transition to a low carbon,resilient and sustainable Scotland.”

SEPA priorities this year

• Acting to combat climate change

• Championing sustainable resource use

Have you dealt with the Scottish Environment Protection Agency? Tells us about it in confidence to scottishlawreporters@gmail.com

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NEW JUDGE ON THE BLOCK: Lord Carloway installed as Lord Justice General & Lord President of the Court of Session

Lord Carloway installed as Scotland’s new top judge. SCOTLAND has a new top judge today as Lord Carloway was formally installed in a ceremony this morning at Parliament House as the new Lord President & Lord Justice General of the Court of Session.

The post of Lord President – who is paid £220,655 a year – lay vacant for an unprecedented seven months after Lord Carloway’s predecessor in the job – Lord Brian Gill unexpectedly walked out of the top judicial post in May 2015 – giving only 30 days notice he intended to quit.

Lord Carloway’s confirmation as Lord President was reported in further detail, here: Lord Carloway appointed as Scotland’s Lord President & Lord Justice General of the Court of Session.

Lord Carloway – real name Colin Sutherland – is known for his backing for the Scottish Government’s failed plan to remove corroboration from Scots law.

While in the role of Lord Justice Clerk, Lord Carloway authored the Carloway Review Report & Recommendations 2011 – which backed a joint effort by Scottish Ministers and the Crown Office to remove the centuries old safeguard against wrongful convictions requiring evidence in criminal trials to be corroborated from two independent sources.

The Carloway Review and it’s recommendation to abolish corroboration – was opposed by members of the judiciary in their Response by the Senators of the College of Justice to SG consultation : Reforming Scots Criminal Law & Practice.

Meanwhile, a new appeal court has been set up to examine disputed civil cases from Scotland’s sheriff courts.

The new Civil Sheriff Appeal Court will hear appeals on civil cases from local courts which are typically less serious than those escalated to the Court of Session.

The Criminal Sheriff Appeal Court – created last year has already fallen foul of the legal profession after solicitors vowed to boycott it over levels of legal aid fees.

Commenting on the changes, Community safety and legal affairs minister Paul Wheelhouse – who previously mislead a Holyrood Committee with back pocket briefing notes aiming to help the previous Lord President conceal judges links to business and judicial financial & property empires, said the changes would help “reduce unnecessary delays”.

Speech by Lord President, Lord Carloway: Friday 8 January 2016

A few words. First, I wish to thank my own colleagues and all the staff for their support over the last 7 months or so whilst the appointment process was taking place. This was an invaluable resource during a period of some uncertainty. Secondly, I wish to thank all who have taken the time to write to me with words of encouragement and wisdom. I will reply to all of them over time. Thirdly, I wish to thank everyone here for taking the time to attend this ceremony.

This is not the time or place for prolonged analysis of the challenges which the courts face as we commence another New Year. It is after all a business day and some of what I am going to say has been said before. I should, however, say something about what is being addressed and with what priority. I am not today going to cover the integration of the reserved tribunals into the Scottish Courts and Tribunal Service, but that does not mean that it is not regarded as of particular importance.

On the civil side, we will shortly have the Sheriff Appeal Court hearing the merits of appeals; removing a portion (perhaps one fifth) of the appellate business from this court’s Inner House. The All Scotland Sheriff Personal Injuries Court has recently been launched and is expected, along with other sheriff courts operating in the post new privative jurisdiction limit, to absorb the bulk of the PI work traditionally channelled through this court’s Outer House. We await statistical information on the practical effect of these major pillars of Lord Gill’s reforms. It will undoubtedly produce a rebalancing of civil work which ought to see the Court of Session engaged primarily in cases appropriate to the supreme courts in Scotland.

In due course, consideration may require to be given to the size of the Divisions and the work of the appellate judges according to the change in business volumes. We await too the impact of the new provisions: for leave to proceed with judicial review petitions, to appeal generally to the Inner House; and to proceed to the United Kingdom Supreme Court. The UK Supreme Court provisions should ensure that only significant matters of law, rather than fact, and then only ones of general public importance, will be considered by that court. That will be something into which that court will have a decisive input. Again, however, a rebalancing will undoubtedly occur, which will hopefully ensure that each case will ultimately be considered at, but only at, the appropriate judicial level.

There will be continued work to increase accessibility to the courts, including the Court of Session. This will involve a determined drive towards more sustainable procedures with the introduction in the near future of what will in effect be the electronic process. There will be efforts focused on the time taken not for a case to be heard in court, but for a decision to be issued. The problem area here is primarily the Outer House, but in that context it applies across the board in ordinary, commercial and family actions. The solution requires careful consideration of the allocation of judicial reading, hearing and writing time; a fine balance which, after many years of experimentation, we have not yet succeeded in securing.

Accessibility at sheriff court level is also a priority. The untiring Rules Rewrite team, to which we continue to owe a deep gratitude, have been producing a vast series of new rules in a variety of different fields. The effectiveness of the new Simple Procedure Rules will be the touchstone of our success in this difficult area, which affects so many in terms of relatively low value, often consumer related, claims by private individuals.

On the criminal side, there are, as Donald Rumsfeld said, known unknowns. What we do know is that over the last 4 years or so there has been a 60% increase in the number of High Court trials. Numerically this means that, within broadly the same budget, we are dealing annually with 160 more trials, each of which takes an average of 6 to 7 days, than we were processing in 2010. This is a significant challenge. The known unknown is that, other than anecdotal reasoning concerning the subject-matter of the modern High Court prosecution, the underlying cause of this – and it exists at sheriff solemn level too – is uncertain.

We await the coming of the new Criminal Justice Act with the Bowen Reforms on sheriff and jury trials. This will bring sheriff and jury practice into line with the High Court.

There has been concern expressed about the extension of time limits, not for the Crown bringing cases into court at a first diet or preliminary hearing, but thereafter for the court to allocate the case for trial within the current programming constraints. The issue for the future will be whether, in the era of statutory disclosure, scientific analysis of DNA findings and the recovery and detailed scrutiny of text and email messaging, the narrow window allowed by statute for the commencement of a trial is sustainable or in accord with modern principles of fairness or justice.

The recent Audit Scotland report on summary prosecutions threw up some interesting statistics including levels of churn and the substantial costs of the late resolution of cases. These will all be addressed.

The Scottish Courts and Tribunal Service will shortly be in a position to complete its review on evidence and procedure with a view to asking the Government to consider reforms, some of a radical nature, to the way in which we conduct trials and, in particular, the requirement for all witnesses to attend court and testify on oath, even if their evidence is either not controversial or not to be challenged. The continued efficacy of the now almost eviscerated prohibition of hearsay will require re-examination in light of modern technological advances.

We can only have a successful Scottish Legal System if we all participate in its constant re-evaluation. This does not mean that we all require to agree on the best way forward. We will never achieve that level of perfect harmony in Parliament House. If we can all, however, engage in discussing where the problems lie and attempt to devise practical solutions for them, the system will begin to match public expectations in the 21st Century. I look forward to working with everyone willing to do so in achieving that end.

Thank you once again for coming this morning. The court will now adjourn.

On his appointment as Lord President, Lord Carloway is to be asked to give evidence to the Scottish Parliament’s Public Petitions Committee in connection with three year probe on proposals to require judges to register their interests, as called for in 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, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The proposal to require judges to declare their interests enjoys cross party support, and was widely backed by MSPs during a full debate in the Scottish Parliament’s main chamber on 9 October 2014 – reported in full with video footage of MSPs and Scottish Ministers speaking during the Holyrood debate, here: Debating the Judges.

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

 

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REGISTER ADVICE: Scottish Parliament asked to recall Legal Affairs Minister over refusal to reveal government’s secret legal advice on register of judges’ interests

Scottish Minister refused to disclose secret legal advice on judges interests. A SCOTTISH Parliament Committee has been asked to recall Legal Affairs Minister Paul Wheelhouse to face questions on secret legal advice commissioned by the Scottish Government on proposals to create a register of interests for the judiciary.

The existence of the secret legal advice – compiled while Lord Brian Gill was head of the Scottish judiciary – and effectively head of the entire justice system – came to light after details obtained via Freedom of Information legislation were handed to MSPs.

The request to recall the Legal Affairs Minister to face questions from the Scottish Parliament’s Public Petitions Committee comes after Paul Wheelhouse refused to discuss or disclose the content & provider of the secret legal advice – with MSPs who are investigating Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The judicial transparency proposal calls for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

Responding to a written request from the Petitions Committee to disclose information on the secret legal advice, Legal Affairs Minister Paul Wheelhouse told MSPs: “In line with the long standing position under successive Ministerial Codes including the most recent version (2015 edition), other than in exceptional circumstances, the Scottish Government does not comment on the source or content of its legal advice, including why legal advice was sought, nor does it provide specific dates about when legal advice was provided.”

Mr Wheelhouse continued: “I am sorry not to be more helpful in this regard but I am sure you can appreciate the good reasons for this guidance which we follow. Paragraph 2.30 of the Code requires Ministers and officials to ensure that their decisions are informed by appropriate analysis of the legal considerations, and that the legal implications of any course of action are considered at the earliest opportunity. Therefore the Committee can be assured that the Government draws on oral and written legal advice as appropriate from its lawyers, from Counsel and from Law Officers.”

While the content of the legal advice is currently unknown – it is thought to have played a role in the Scottish Government’s efforts to undermine MSPs investigations into plans to require judges to declare their vast wealth, links to big business & other interests.

There are concerns as to why the Scottish Government commissioned the secret legal advice on a petition calling for a register of judicial interests, and then failed to mention the existence of the advice during letters from Scottish Ministers including former Justice Secretary Kenny MacAskill – to the Public Petitions Committee during MSPs investigation of the petition.

The existence of the secret legal advice was also concealed by Scottish Ministers during a full Parliamentary debate on the petition at Holyrood last October 2014 – reported with video footage of the debate, here: Debating the Judges.

And, Legal Affairs Minister Paul Wheelhouse did not reveal the existence of the key legal advice on judicial interests during an evidence session he attended at Holyrood in December 2014 – in which the Minister claimed gangster threats meant there could be no register for judges.

An investigation by the Sunday Herald newspaper later established the Legal Affairs Minister misled the Committee, and no such gangster threats Mr Wheelhouse referred to in evidence, were ever made.

Writing to the Petitions Committee, the petitioner has now sought the recall of Mr Wheelhouse.

The petitioner said: “The content of the legal advice and what it says with regards to the application of equivalent levels of transparency & declarations of interest to the judiciary – as exist with others in public life, is sufficiently important to be debated in public.”

MSPs on the Public Petitions Committee requested details relating to the legal advice after they were handed details obtained via Freedom of Information legislation – revealing the Scottish Government had secretly commissioned legal advice on the petition.

The subject of the Scottish Government’s legal advice was discussed during an evidence session at Holyrood on 23 June 2015 where MSPs heard from Scotland’s current Judicial Complaints Reviewer (JCR) Gillian Thompson OBE – who told MSPs she fully supports the creation of a register of judicial interests.

Voicing support for the petition, Ms Thompson told MSPs: “I do not see that there is a reasonable argument to be made against people who are in public service—I might go further and say, in particular, people who are paid by the public pound—providing information, within reason, about their other activities.”

After taking evidence from Gillian Thompson, Petitions Committee member & Independent MSP John Wilson called for “clarification of when that legal advice was sought and why the Government felt it necessary to seek that advice”.

Since the Petitions Committee asked to see the Scottish Government’s legal advice on judicial interests, it has now been established via an on-going Freedom of Information investigation that Lord Gill may also have taken legal advice on the petition.

Given the legal advice obtained by the Scottish Government was compiled while Lord Brian Gill was head of the Scottish judiciary – it would be surprising if the provider of the legal advice disagreed with Lord Gill’s policy of opposition to the petition and any increase in judicial transparency & accountability.

After the top judge suddenly retired in May 2015, quitting office after he gave 30 days notice, Gill (73) remained bluntly opposed to any moves to compel judges to declare their interests.

The top judge – who spent two of his short three year term as Lord President leading a bitter campaign against plans to require the judiciary to declare their vast wealth & business interests – wrote a series of terse letters to MSPs lobbying against the judicial transparency proposal.

Lord Gill – branded “Lord No-No” for refusing to give evidence at Holyrood – lashed out in letters at the media, litigants, court users & the public, describing all as “aggressive” – in an attempt to shut down an investigation by Holyrood MSPs of judicial vested interests and calls for highly paid judges to register their interests like all others in public life.

At one point, Gill implied he may have to consider restricting the judiciary’s interaction with Scottish Parliamentary Committees. And, in the same letter, the Lord President claimed judges could not be hauled before the Scottish Parliament due to loopholes in the Scotland Act .

Justice Diary recently revealed Lord Brian Gill emerged from his brief summer retirement – taking up an appointment as a supplementary panel judge at the London based UK Supreme Court.

Lord Gill has now finally agreed to give evidence at Holyrood, next month, reported here: U-TURN, M’LORD: Top judge Lord Gill to appear before Scottish Parliament to face questions on judicial transparency & calls to create a register of judges’ interests

NO REVIEW OF JUDICIAL COMPLAINTS REVIEWER:

In a double blow to judicial transparency, Legal Affairs Minister Paul Wheelhouse also told MSPs he did not think four years was long enough to conduct a review of the role of Judicial Complaints Reviewer (JCR).

The Legal Affairs Minister said in his letter: “I agree, in principle, with the proposal for a review of the JCR role. However, I am not minded to commission a review at this stage given the relatively short period of operation of the office and the fact that the role is to be extended by the Tribunals (Scotland) Act 2014.”

“In the circumstances I would propose to consider a review of the role once the office holder is exercising the new functions under the Tribunals (Scotland) Act 2014. The review could then look comprehensively at the role and remit of the JCR, including assessment of the workload, capacity matters etc across the full range of functions carried out by the JCR.”

The Minister’s refusal to commission a review of the office & powers of JCR comes after the current JCR Gillian Thompson called for a review of the role.

JCR Gillian Thompson told the Committee in her evidence: “I have said to the Scottish Government that we are four years into the role and I am the second person in the role so it is probably time to start thinking about the possibility of reviewing whether what was originally envisaged under the primary legislation, which was passed in 2008, is what is still required.”

“As a former civil servant, I am always supportive of the idea that, if we have a policy and a concept and the Parliament has agreed to legislation, once it has been in force for a while, at some point or another—a three or four-year period seems not unreasonable—we should go back to have a look at the legislation to see whether it still meets the requirements.”

Gillian Thompson’s predecessor – Moi Ali resigned from the role of Judicial Complaints Reviewer in 2014 after describing the job as “window dressing” during an evidence session held at Holyrood in September 2013

VESTED INTERESTS INTERVENTION:

Earlier this year it emerged a secret meeting was held in February between Legal Affairs Minister Paul Wheelhouse and Lord Gill during February – to discuss joint efforts between the Scottish Government and senior judicial figures to undermine proposals for increased judicial transparency.

Some weeks after the meeting, Scotland’s First Minister Nicola Sturgeon issued a letter of intervention declaring she felt judges should be able to conceal their interests and other activities – activities which now extend from shareholdings in corrupt businesses to lobbying for fracking interests to tax avoidance and more. The Scottish Government’s attempt to thwart a register of judicial interests was reported in the media here: INTERESTS INTERVENE: First Minister joins top judge in bid to block register of judicial interests

Previous articles on the lack of transparency within Scotland’s judiciary, investigations on judicial interests 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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U-TURN, M’LORD: Top judge Lord Gill to appear before Scottish Parliament to face questions on judicial transparency & calls to create a register of judges’ interests

From Qatar to Holyrood – Lord Gill to give evidence on judicial register. SCOTLAND’S former top judge who led a bitter two year fight against proposals to create a register of judges’ interests – has finally agreed to face questions on his opposition to transparency and disclosure of judicial wealth & links to big business – at the Scottish Parliament next month.

Lord Brian Gill (73) – Scotland’s longest serving judge who suddenly retired as Lord President in May – giving only 30 days of notice after serving three years in the post, will appear before Holyrood’s Public Petitions Committee on 10 November 2015.

The former Lord President will face the same committee he twice refused to attend to give evidence and answer questions on the judiciary’s opposition to Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The judicial transparency proposal calls for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

During the two year investigation by MSPs on calls to bring the judiciary into line with all others in public life who are required to declare their interests, Lord Gill waged a bitter, letter-only campaign against the notion judges could be required to declare their vast wealth, connections to the professions & links to big business.

In a series of terse written letters to the Public Petitions Committee, Gill condemned the media, litigants, court users, branding all a threat to judges’ privacy, insisting there would be no deal to declare judges interests.

The top judge went on to imply he may be forced to restrict judges interaction with Holyrood committees, using loopholes in the Scotland Act to claim members of the judiciary could not be forced to give evidence in public if they did not want to.

Lord Gill then embarked on a 5 day state visit to the middle eastern dictatorship of Qatar (among a slew of overseas junkets) – preferring to mingle in the company of politicians & prosecutors from a country condemned for its use of slave labour & abuse of human rights – instead of showing up at the Scottish Parliament to answer questions on vast undeclared judicial wealth, links to professions & banks, tax dodging, concealed investments in huge property empires, crime & unchecked power.

While in Qatar, Gill toured a motor museum, and was photographed attending organisations accused of being funding fronts for Qatar to influence international politics, business & wars around the world.

And, in yet another act of defiance against calls for openness, the aging Lord Gill blasted elected politicians and transparency itself as an “insidious threat” to the judiciary – during a speech at the Commonwealth Law Conference 2015 held in Glasgow earlier this year.

During his widely witnessed rant, given to a crowd of judges, lawyers & legal vested interests, Gill said: “The threats to judicial independence do not always come with a knock on the door in the middle of the night.  In a society that prides itself on the  independence  of  its  judiciary,  the  threat  may  come  in  insidious ways, even at the hands of well-meaning governments and legislators, in the name of efficiency and, ironically,  in the name of  transparency.”

In the same speech, the 73 year old judge went on to joke about two individuals who were allegedly protesting against the top judge “standing perhaps appropriately, at the Heart of Midlothian, the scene of public executions in Edinburgh in former times”.

The proposal to require all members of the judiciary to declare their interests gained cross party support from msps during a debate on the petition – held at the Scottish Parliament on 7 October 2014.

The Parliamentary debate, including video footage and the official record, was reported in the media, and on Justice Diary here: Debating the Judges.

During the debate, MSPs openly joked it may have been easier to visit Qatar and get answers from Gill than bring him before the Scottish Parliament – only a few steps down the Royal Mile from Gill’s seat of power – Parliament House.

As MSPs made their speeches – mostly in favour of the creation of a register of judicial interests, Gill’s refusal to attend the Scottish Parliament came in for heavy criticism.

Independent MSP John Wilson said of Lord Gill’s refusal to give evidence at Holyrood: “Clearly, we must ask why we cannot have a register. No doubt the associated media coverage of Lord Gill’s non-appearance at the Public Petitions Committee has led to him being given the title of Lord No-No. That is not something that I particularly welcome, although, quite frankly, it seems to have a degree of merit for an individual who spent six days in Qatar to give a speech about transparency and judicial regulation that lasted one hour, but who could not find the courtesy to accept an invitation from a mandatory committee of this Parliament.”

Scottish Conservative MSP Jackson Carlaw said: “John Wilson is absolutely right. I have here a copy of the 16-page speech that the Lord President gave in Qatar, incorporating the very issues that we addressed. Had the committee known, we could have applied to the parliamentary authorities to go to Qatar to hear the speech in person and tackle the Lord President there. If he did not come to the committee, the committee could have gone to him.”

Gill’s refusal to appear at Holyrood was condemned by Labour MSP Neil Findlay – who said in his speech during the debate: “.. is it not an outrage that Lord Gill had such contempt for this Parliament that he refused to attend a particular meeting? Does that not make people even more suspicious of his motives?”

Mr Findlay continued: “I fully support the proposal for a register of interests for members of the judiciary. After all, we have the right to know whether those who are involved in determining whether a man or woman loses their freedom have any financial, business, social, political or other relationship that could influence any decision they might make. Currently there is no compulsion to declare such an interest and we rely on what is known as the fair-minded observer test. That, to me, is wholly inadequate. Through history, we have heard allegations of religious, class, financial and political bias or of members of certain organisations being helpful to each other during trials. I can think of many industrial and other disputes that have gone to court where claims of bias and collusion have been made—and, I believe, with justification.”

“That situation has to end, and we should have a register with clear rules that leave no one in any doubt about who and what should be registered. Is it really a surprise to people that the legal establishment does not want such a register.”

Upon the debate’s conclusion, MSPs overwhelmingly supported a motion urging the Scottish Government to create a register of judicial interests.

Scotland’s first ever Judicial Complaints Reviewer (JCR) – Moi Ali supported the judicial transparency proposal during a must watch evidence session held at Holyrood in September 2013.

Current JCR Gillian Thompson OBE gave further support for the plan to create a register of interests for judges during a recent evidence session at Holyrood in June 2015.

Earlier this year it emerged a secret meeting was held in February between Legal Affairs Minister Paul Wheelhouse and Lord Gill during February – to discuss joint efforts between the Scottish Government and senior judicial figures to undermine proposals for increased judicial transparency.

Some weeks after the meeting, Scotland’s First Minister Nicola Sturgeon issued a letter of intervention declaring she felt judges should be able to conceal their interests and other activities – activities which now extend from shareholdings in corrupt businesses to lobbying for fracking interests to tax avoidance and more. The Scottish Government’s attempt to thwart a register of judicial interests was reported in the media here: INTERESTS INTERVENE: First Minister joins top judge in bid to block register of judicial interests

The Scottish Sun on Sunday reported on Lord Gill’s planned appearance at Holyrood next month:

 Lord Gill in U-Turn over quiz at Parly

By Russell Findlay, Scottish Sun 04 October 2015

FORMER top judge Lord Gill is to be grilled by MSPs over his opposition to plans for a register of judges’ hidden interests.

The ex-Lord President has twice snubbed invites to appear at Holyrood.

But he has agreed to face the Petitions Committee next month after they issued a third plea.

Legal campaigner Peter Cherbi said: “This is a significant U-turn from a judge who spent the last two years fighting Holyrood’s investigation of judicial interests.

“It’s time for him to come clean on the closed world of judicial interests, wealth, influence and links to big business.”

Tory Jackson Carlaw urged MSPs to make the third invite after the beak, 73, retired.

He said: “I’m sure the committee will host a fascinating and frank exchange of views.”

The Sunday Mail also reported on Gill’s planned appearance at Holyrood:

 Lord No-No says yes to parly probe

MSPs to quiz judge

By Mark Aitken, Sunday Mail 4 October 2015

Former top judge Lord Gill will finally be quizzed by MSPs on his opposition to his colleagues’ business and financial secrets being made public.

Lord Gill retired as Lord President of the Court of Session at the end of May.

He was dubbed “Lord No-No” for snubbing requests to appear before Holyrood’s petitions committee, who are considering a submission by campaigner Peter Cherbi for a judicial register of interests.

Details could include gifts, hospitality, property, shares, criminal convictions and links to outside bodies such as law firms.

Lord Gill twice declined to appear before the committee, citing the need for judicial independence from political interference.

But his retirement from the bench means he will now give evidence at Holyrood on November 10.

Cherbi said: “Now Lord Gill cannot hide behind the rank of lord president and refuse to attend.”

“The judiciary must be brought into line with the 21st century whether they like it or not.”

Committee member John Wilson MSP said: “It is disappointing he has taken the decision to appear before the committee when he effectively no longer has any influence on the judiciary.”

The Sunday Herald newspaper also reported on the decision by the former top judge to visit the Scottish Parliament:

 Lord Gill to finally give Holyrood evidence

Paul Hutcheon, Investigations Editor Herald Scotland: Sunday 4 October 2015

ONE of the country’s top judges has finally bowed to pressure by agreeing to give evidence to a Holyrood inquiry on the creation of a judicial register of interest.

Lord Gill, who recently retired as Lord President, had twice snubbed calls to face MSPs but will be grilled on the contentious subject next month.

Currently, a range of senior public sector figures, including MSPs, MPs, councillors and public board members, must provide details of directorships or shareholdings, but judges and sheriffs are under no such obligation.

Members of the judiciary are instead require to ‘recuse’ – or excuse – themselves from cases where there might be a potential conflict of interest.

Campaigner Peter Cherbi tried to plug the loophole by tabling a petition to Holyrood that would require judges to declare their pecuniary interests.

However, Gill, who as Lord President was the most senior judge north of the border, submitted written evidence to Holyrood’s Public Petitions Committee opposing the plan.

He argued that a judge’s privacy could be affected by “aggressive media or hostile individuals” and warned:

“The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the judiciary.”

However, Lord Gill then refused invitations by the Committee to explain his written evidence in person in front of MSPs.

He told Holyrood that the legislation that created the Parliament contained a provision that meant judicial officer holders could not be required to give evidence.

He instead agreed to a private meeting with senior members of the committee.

After Gill retired earlier this year, MSPs invited him to give evidence for a third time.

Gill has agreed and will face MSPs on November 10.

Cherbi said: “Now that Lord Gill cannot hide behind the rank of Lord President and refuse to attend the Scottish Parliament, it will be interesting to hear how Scotland’s longest serving judge attempts to justify a judicial exemption against transparency when openness is supposedly a pre requisite for all others in our courts and justice system.

Tory MSP Jackson Carlaw, who is also a committee member, said: “I warmly welcome this change of heart by Lord Gill to appear before the Committee, even if it is as the former Lord President. I am sure the committee will host a fascinating and frank exchange of views.”

Justice Diary recently revealed Lord Brian Gill emerged from his brief summer retirement – taking up an appointment as a supplementary panel judge at the London based UK Supreme Court.

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

 

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REGISTER, M’LORD: Former top judge Brian Gill called to Scottish Parliament as Judicial watchdog tells MSPs – Judges should declare their interests in public register

Judges should be subject to register – Judicial watchdog. A REGISTER of interests for judges should exist – says Scotland’s Judicial Complaints Reviewer (JCR) in answer to questions from MSPs who are currently investigating proposals to increase judicial transparency as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

In response to questions from members of the Scottish Parliament’s Public Petitions Committee, JCR Gillian Thompson OBE told MSPs: “I do not see that there is a reasonable argument to be made against people who are in public service—I might go further and say, in particular, people who are paid by the public pound—providing information, within reason, about their other activities.”

As msps deliberated the evidence presented by the JCR, committee member Jackson Carlaw (Scottish Conservative) also called for the now retired Lord Brian Gill to be invited again to the committee to give evidence and account for his stern opposition to the judicial transparency proposals.

Gill (73) –  waged a bitter two year long battle against proposals to create a register of judicial interests. The now retired Lord President previously refused two invitations to attend the Petitions Committee.

The judicial transparency petition which has been the subject of a two year investigation by Holyrood – proposes the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

During the evidence session – held prior to Parliament’s summer recess – it also emerged the Scottish Government took legal advice on the proposal to require judges to declare their substantial wealth, links to big business and others.

The existence of the legal advice emerged from a Freedom of Information request recently passed to the Petitions Committee as part of their investigation of a judicial register.

Committee member & independent MSP John Wilson called for enquiries to be made of the Scottish Government in relation to the nature and origin of the legal advice – the details of which have not yet been made public to msps.

Facing further detailed questions from the committee, JCR Gillian Thompson remained of the view judges should declare their interests including business activities, shareholdings and more – in a publicly available register of judicial interests.

Gillian Thompson’s backing for a register of judicial interests continues the position taken by Moi Ali – Scotland’s first JCR – who continues to support the creation of a register of judicial interests.

Moi Ali previously attended the Scottish Parliament for an evidence session during September 2013, giving powerful evidence on the position of the judiciary and the lack of transparency & accountability of judges in Scotland. Moi Ali’s meeting with msps was reported by the media, along with video footage here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Convener of the Scottish Parliament’s Public Petitions Committee, John Pentland MSP commented: “The question for the Committee is this: is it reasonable for the ordinary man and woman to expect transparency from our judges in their dealings and their interests? Gillian Thompson, the new Judicial Complaints Reviewer believes it is, and echoed the views of her predecessor when she gave evidence to the Committee.”

Mr Pentland continued: “The Committee will continue to consider what further work could be done to increase transparency. It was unfortunate that Lord Gill felt it was inappropriate to give evidence while he was Lord President of the Court of Session, But as he has now stepped down from his role, the Committee has agreed to extend another invitation to him to discuss his perspective on this important topic. We also look forward to inviting the new Lord President to give evidence to the Committee, once they are in post.”

The Petition Committee’s call to bring the former top judge before msps was reported in the Scottish Sun on Sunday newspaper:

IT’S TIME, LORD

Ex-judge faces parly secrets probe order

EXCLUSIVE by RUSSELL FINDLAY 28 June 2015

FORMER top judge Lord Gill could be forced to face a grilling by MSPs over secret business links.

He has twice snubbed requests to attend Holyrood.

As Lord President, he was free to opt out of giving evidence about proposals for a register of judges’ hidden interests, including commercial ties.

But since he retired this year, Lord Gill, 73 — who is against the plans — can be ordered to appear if he turns down a third invitation by parly’s petitions It was issued after a plea by Tory Jackson Carlaw.

Mr Carlaw, right, said: “We need to hear from Lord Gill what it is he believes is risked by such a register.

“Another refusal would confirm the suspicion he doesn’t fancy having to do what almost everyone else in public life has to do.” Committee chief John Pentland confirmed the request.

The Labour MSP said: “As Lord Gill has stepped down, he has again been invited to give his perspective on an important topic.”

In keeping with documenting the full debate on judicial interests, video footage and the full transcript of the Public Petitions Committee evidence session with JCR Gillian Thompson are reprinted below:

JCR Gillian Thompson OBE evidence to Scottish Parliament: Register of Interests for Judges Petition PE1458 Scottish Parliament 23 June 2015

Judiciary (Register of Interests) (PE1458), Evidence from Judicial Complaints Reviewer Gillian Thompson OBE

The Convener (John Pentland): Good morning and welcome to the 13th meeting in 2015 of the Public Petitions Committee. I remind everyone to switch off mobile phones and electronic devices, as they interfere with the sound system. No apologies have been received.

Agenda item 1 is consideration of a continued petition, PE1458, by Peter Cherbi, on a register of interests for Scotland’s judiciary. As previously agreed, we are taking evidence today from the judicial complaints reviewer. Members have a note by the clerk and a submission from the petitioner, and they were sent a link to the previous judicial complaints reviewer’s annual report.

I welcome Gillian Thompson OBE, the judicial complaints reviewer, to the meeting and invite her to make a short opening statement of no more than five minutes, after which we will move to questions.

Gillian Thompson OBE (Judicial Complaints Reviewer): Good morning and thank you for inviting me. I will say a few words to put my appearance today in context. I have been in post since September 2014. I have a background in public service. I was a civil servant for 36 years, and since then I have gathered to myself a group of board memberships on charities and third sector organisations and now the post of judicial complaints reviewer.

I will tell you where I am with the work, because that was something that you asked my predecessor. Since I took up post, I have had 22 requests for review, 17 of which are outstanding. I am actively looking at three this week, and I hope to get rid of those by Friday. I inherited a backlog of 14 from my predecessor and I cleared those around 25 March 2015. That gives you a bit of a feel for how the work is going. The waiting time for people is around four to five months. I have not had any complaints about that, although I appreciate that it is not ideal.

I wrote to the committee at its request on 12 January. I am supportive of a register of interests. I always have been and that remains my position.

The Convener: Thank you, Gillian. In your letter to the committee, you wrote:

“We live in an age in which transparency about interests and activities of those in the public eye is regarded as good practice. There is a perception that anything less is the result of attempts to hide things.”

That suggests that anything less than the degree of openness that is associated with a register of interests would not constitute best practice and would be perceived as an attempt to hide things. Is that a fair interpretation?

Gillian Thompson: Absolutely. That remains my view.

David Torrance (Kirkcaldy) (SNP): Good morning. In your opening statement, you said that you were in favour of a register of interests. Will you expand a wee bit on why you are in favour of it?

Gillian Thompson: For the reasons that I set out in my letter in January, I do not see that there is a reasonable argument to be made against people who are in public service—I might go further and say, in particular, people who are paid by the public pound—providing information, within reason, about their other activities. People in this room, including me, keep a register of interests. In my experience, it is not particularly onerous. Of course, we would be talking about there being a register somewhere that somebody would have to keep and all the points that I made in my letter. However, registers need to be updated reasonably regularly. I will update mine shortly because I am taking on some new and different responsibilities.

For me, it is about a mindset. I cannot see arguments against it, I have to confess so, although I am experienced in giving a balanced view, I am not sure that I can do so on this occasion. People want to be able to feel that they are getting an even-handed response at court, whoever sits in judgment. They want to feel that there is no bias, and a register would go part of the way—it is all part and parcel of a wider picture—towards reassuring them that nobody is hiding anything.

Jackson Carlaw (West Scotland) (Con): Good morning. Do you consider yourself to be part of the establishment?

Gillian Thompson: I suppose that that depends on where you are sitting. No, I probably do not.

Jackson Carlaw: I do not know whether I am relieved. As far as I can see, the establishment—in so far as it exists—has been unanimously against any such register, as has the Government in, no doubt, the personage of Mr MacAskill, who was in the Government at the time we received the advice. He will speak for himself in due course.

Your predecessor was quite sympathetic towards a register of interests and, from what we have read, you are too. The former Lord President’s principal argument seemed to be that, unlike members of the Parliament, members of the judiciary would not have the opportunity to answer back if they were challenged in some way. Ironically, however, he did not deign to come before the committee to answer back in person to defend any of his assertions on these matters, so we have always had to try to read the runes. I think that our former convener and deputy convener were able to meet him privately, but they are no longer here.

The former Lord President’s argument was essentially that there was no need, in this era of transparency, for light to shine on the judiciary, and that some great malfeasance of justice could occur if it were to do so, but primarily it was that there was an obstacle to being able to rebut any assertions or claims that were made based on the register. Does that resonate with you as sufficient ground to disbar such a suggestion?

Gillian Thompson: No. My understanding of what Lord Gill had said before was that, as far as he was concerned, judges took an oath to uphold certain values, so nothing further than that was required, because the public would be able to rely on people in that position to know what they needed to do and to do it. I understand that, since the judicial complaints reviewer post was put in place in 2011, there is now a recusal process. Judges can recuse themselves and there is a register, or at least a list, of those people who have done so.

However, I am not persuaded by that argument. At the moment, people are able to make a complaint about the conduct of a judge in whatever form. I would have thought that some way could be found of challenging or answering back or having a review taken, if there is a list. I can see that there might be a need to extend the complaints process, but I do not know. It is a normal part of public service that people keep a register. It seems to me to be common sense.

Jackson Carlaw: Thank you.

Kenny MacAskill (Edinburgh Eastern) (SNP): I see the logic of where you are coming from, but who would impose the sanction in the event of a breach or failure? Would it come back to the Lord President or to yourself? Who would be the final arbiter of a failure to register or a failure to properly register?

Gillian Thompson: It is a bit of crystal ball gazing, is it not? The judicial complaints reviewer role stands and it does what it says on the tin in terms of the regulations. All that I can do at this juncture is to examine whether the rules have been followed in relation to the complaint. I do not look any further beyond that at all. There would obviously need to be consideration of how the process would work, but the Lord President currently has responsibility for sanctioning judges in the event that something is found against their conduct under the rules. I would have thought that responsibility would sit squarely on the shoulders of whoever comes along as Lord President in future.

Kenny MacAskill: Presumably, the register would be financial and pecuniary. A lot of the recusals that are made at the moment will be because a judge has knowledge of a witness or a relationship with them.

Gillian Thompson: Yes. It is a register of interests. I gave you my little register of interests, including what I am paid and which charities I support, and including my membership of the Scottish Dachshund Club, just to underscore the point. The answer to your question is yes. Why should not whatever is deemed appropriate for others, such as yourself and Government ministers, also be deemed appropriate for people who are sitting in judgment on others?

John Wilson (Central Scotland) (Ind): Good morning. I note that a voluntary register of recusal has been established. Can you confirm that, at present, a judge or sheriff can recuse themselves voluntarily?

Gillian Thompson: As far as I am aware, that is the case.

John Wilson: I make the point, because we have just seen the establishment of the first private bank for 150 years. It claims to have 250 shareholders, and it has been reported in the press that some of those shareholders are judges and sheriffs. Do you think that it would be appropriate for those judges or sheriffs to put themselves on the register if they were shareholders in a private bank?

Gillian Thompson: Why would they not?

John Wilson: Well—

Gillian Thompson: I am just raising the question—it is not an issue that I have thought about before now. My view is that anything at all that could be construed by a person in the street using everyday common sense as getting in the way or which might be perceived as getting in the way should go on a register. However, we should remember that it would not be for me to make such decisions, even if we were to get to that position.

John Wilson: My understanding is that you have been invited along to give us your views, because we respect the role of the judicial complaints reviewer—

Gillian Thompson: I appreciate that.

John Wilson: —and because we also took evidence from your predecessor in pursuing this petition. Your evidence will, I hope, indicate to the committee where we should go with this petition and the kinds of issues that it raises.

You said—and I am paraphrasing—that the ordinary person in the street should get to know whether a judge or sheriff has interests that might impact on their service or their hearing a particular case. How far would you want to take that? After all, there are issues about financial interests or people appearing in front of judges and sheriffs who might be members of the same golf club or, indeed, the Scottish Dachshund Club that you mentioned. If a register of interests for judges and sheriffs were to be established, how far would you want it to go?

Gillian Thompson: As I said on record at the outset, I am supportive of my predecessor’s position. There should be a register for judges in which they note their interests. Would we ever reach the point where a judge would say in court, “I want to register the fact that I know this person. We play at the same golf club,” or, “I don’t know this person”? In the context of this conversation, I have to say that I do not know. It would be necessary to give a bit more thought to the practicalities of that. All I can say is that, when I go to a meeting, we are asked at the beginning whether, for example, there has been any change to the register of interests that we keep in a particular context.

Just for the sake of clarification, I am supportive of a register of interests. I think that that is what the public, if they have thought about the matter, want. I might be asked for my opinion on what that might look like in its absolutely final state, but sitting here today, I am not sure that I can go into all the ins and outs of that.

John Wilson: I appreciate that, Ms Thompson. Thank you very much for your evidence.

Angus MacDonald (Falkirk East) (SNP): Good morning, Ms Thompson. Following on from that point, there is an argument that the information on a register could be abused by the media, hostile individuals or dissatisfied litigants. Do you have any views on that?

Gillian Thompson: It is an inevitability that, when you put information into the public domain, different interests might cross over. I had personal experience of that recently. I had to deal with an issue that arose with what looked like some sort of cross-purposing of some different roles that I hold. However, that was just a misunderstanding on the part of the person who was seeking to investigate a bit further. In my experience, one has to spend a bit of time unscrambling such misunderstandings, but I would not say that that is a reason for not having a register.

These things need to be managed, of course, as I indicated in my response in January. Somebody would need to hold the register and it would need to be managed—there is an on-cost to all of that. However, as I understand the nature of the petition, it is about seeking some clarity for those people who are going to court about interests that judges may hold that are not known.

Angus MacDonald: While I have the floor, I will go back to a point that was raised earlier. You indicated that you agree with your predecessor’s view that the powers of the JCR to review the complaints process are limited. If that is the case, do you have any plans to review the complaints process?

Gillian Thompson: It is not for me to review. I have said to the Scottish Government that we are four years into the role and I am the second person in the role so it is probably time to start thinking about the possibility of reviewing whether what was originally envisaged under the primary legislation, which was passed in 2008, is what is still required.

As a former civil servant, I am always supportive of the idea that, if we have a policy and a concept and the Parliament has agreed to legislation, once it has been in force for a while, at some point or another—a three or four-year period seems not unreasonable—we should go back to have a look at the legislation to see whether it still meets the requirements.

I am sitting in the role, but a review might say that we do not need a JCR. I am not saying that; I am just saying that there are a lot of ways to look at the issue and I would not be putting my hand up to say that we absolutely have to have the role. Bluntly, I am interested in whether the role is value for money for the public. At the moment, generally speaking, I hope that I am giving value for money. I am getting more efficient at doing the reviews, and the speed will come.

However, it is a very narrow role that looks only at whether the rules have been followed. It does not involve looking at anything else over and above that. It does not involve looking at the whys and the wherefores or asking how something could possibly happen or whether it is reasonable. There is none of that. I may have thoughts, but that is not my role.

Should there be a review? Yes, but it is not for me to do. I can give input, but the review is for someone else to carry out should they decide that there is scope and appetite for it and that it fits with all the other work that needs to be done.

Angus MacDonald: I presume, however, that it will be a priority that you will raise with the new Lord President once he or she is appointed.

Gillian Thompson: I will raise it, as I have already raised it with the Scottish Government and my contacts in the Scottish Government, including Mr Wheelhouse, whom I met in January.

Hanzala Malik (Glasgow) (Lab): You made a comment about it taking perhaps four to five months to deal with cases and you have suggested that that is perhaps a little long. What would be a reasonable time? Will you be able to meet that in the near future and reduce the time that it takes? I know that you have not been in post for very long, so I appreciate that I am effectively asking you to set yourself a challenge.

Gillian Thompson: I have already done that. As you may be aware, the Scottish Government’s contract with the JCR is for up to three days a month. I have been working more days than that, by agreement with the Scottish Government. From the middle of December 2014, I have been working four days a month.

The backlog refuses to go down, which is largely because of input. It is demand led, and a demand-led service on a restricted number of days will always be a bit of a headache for the person who is delivering the service and for the people who are waiting.

I put a proposal to the Scottish Government in May, I think, and it has agreed for me to do six days this month, next month and in August. Will I clear the backlog? No. However, with two days extra over and above the four, which is effectively twice as many days as what the contract says, I should be able to push through enough cases, but I would not like to say exactly how many. That of course depends on their complexity. Some cases are straightforward, whereas some require me to give a bit more thought and perhaps to seek clarification. Everybody is entitled to have me spend a bit of time thinking about what I will say. As the second person in the role, I have been able to pick up the processes that Moi Ali put in place. They probably need reviewing, but I do not have time to do that.

My hope is that, by the end of August, I will have substantially moved through the backlog. I have a background in public service, specifically in front-line service, and I do not think that it is appropriate for people to wait for as long as four to five months. I write to people to keep them up to date on how much longer they can expect to wait.

I do not want to put a figure on it today, other than to say that I am moving through the cases more quickly now. It takes about a day or perhaps a day and a half to do a reasonably complex case. I can do two cases in one day if they are pretty straightforward and there is not much paperwork. I would like to reach a position where there was no backlog and I was dealing with things as they came in but, frankly, I think that that is unlikely.

In addition to the 22 cases that have come to me since 1 September 2014, I have had seven inquiries. I have put a telephone number on the website, whereas there was not one before, so I get telephone inquiries, too. There are also events such as this meeting today and other meetings, which I do on days when I am not working. We need to be realistic about these things.

Hanzala Malik: I genuinely appreciate your response, which is honest and balanced. However, I do not think that what you are telling me actually helps you. It suggests that there is more pressure on what you are trying to achieve. I do not suggest for a moment that your work would be diluted, but there is a lot of pressure on you to get through the cases in the time that you are working. I suggest that you may want to explore the possibility of either getting more help or more days to try to achieve the good goals that you would like to achieve. I wish you good luck with that.

Gillian Thompson: Thank you. If there was to be a review, that would need to be part and parcel of it. Bear in mind that I do everything, such as housekeeping and maintaining the website, which really need attention. Those are things that I dream about at night—they do not keep me awake, but you know what I mean.

Hanzala Malik: Yes, I do—thank you very much.

The Convener: In an earlier response to Angus MacDonald, you said that it was not your responsibility to do a review of the rules. Do you believe that the current rules are fit for purpose?

Gillian Thompson: Are you talking about my role or the rules? The rules belong to the Judicial Office for Scotland.

The Convener: Do you believe that the complaints process that is run by the Judicial Office for Scotland is fit for purpose?

Gillian Thompson: It is fit for the purpose that is currently in place. I am in absolutely no doubt that the process that is in place at the Judicial Office for Scotland improved during the time when my predecessor was in post, although when she left she felt that she had not added the value that she would have wished to. Picking up where she left off, and having had a number of conversations and meetings with the Judicial Office for Scotland, I am satisfied that the process has grown organically and improved. The way in which the office deals with throughput and writes its letters has improved.

As we would hope, the complaints process has led to service improvement in the entity that the complaints are about. The new rules, which came into effect on 1 April 2015, are an improvement. There has been a bit of sequencing and streamlining of the rules and there is a bit more explanation for people who are trying to find their way through the system. The guidance leaflet was improved.

That deals with one part of your question. The other part—I am interpreting your question—is whether the JCR is fit for purpose. As it is currently constituted, it does what the regulations require of it. It could do more, but that would require somebody to say that more is needed. As I said, the JCR is very one dimensional.

The Convener: As you said, the new complaints rules were published on 1 April. How far did they go to addressing the concerns that your predecessor highlighted?

Gillian Thompson: They did so in small measure, I think. Forgive me if I am telling you something that you know, but Moi Ali had undertaken a mini consultation among the people who asked for a review. When the Judicial Office for Scotland did a consultation, Moi did her own consultation, which she passed to the Judicial Office. You may have seen that the Judicial Office, in tandem with publishing the rules, also published a consultation response, which set out what measures it had and had not taken on.

To answer your question, the Judicial Office went part of the way to responding to the concerns that the petitioner expressed about the rules and how they work. Some of that was around the understanding of a person who comes up against the rules. Sometimes, it is difficult for people who are inexperienced in such matters to understand properly what the different rules mean.

Because quite a bit of time went by, I was asked for my view, too. I offered what I hoped were helpful suggestions. The Judicial Office took a view on the totality of the responses that it got and made a determination to which the Lord President was able to agree. That does not fully answer your question, but it does in part. The committee might be interested in the Judicial Office’s response document. It is helpful in understanding the rule changes that were made.

John Wilson: Will you remind us how many responses were made to the review?

Gillian Thompson: I am not sure that I know. I have a piece of paper somewhere with me, which I can leave with you.

John Wilson: The information that we have in front of us says that there were five responses.

Gillian Thompson: It was a small handful; there were not masses. You can construe your own view on that.

I should clarify that I went back to the Judicial Office to ask whether it had taken into account my predecessor’s responses on the matter. I seem to remember being told that it had not.

John Wilson: That was going to be my follow-up question. I was going to ask whether your predecessor’s responses were included in those five responses.

Gillian Thompson: They were included as one response.

John Wilson: As one?

Gillian Thompson: Yes, I believe so.

The Convener: As there are no further questions, we will move on to deciding what actions we want to take on the petition.

Kenny MacAskill: We should write to the incoming Lord President, whoever he or she may be, to ask them what their views are given the clear expressions of not just one but two Judicial Complaints Reviewers. The new Lord President may be otherwise minded on the matter. It is incumbent on us to wait until we see what they say before we consider the petition further.

Equally, given Ms Thompson’s view, it might be worth asking the Scottish Government whether now is an opportune moment to review the JCR. That would be for the Scottish Government to deal with, rather than the Lord President.

There is the possibility of a new regime for the judiciary with the new Lord President. Equally, after four years, and into the second Judicial Complaints Reviewer, is the job what we want it to be or should it be reviewed? That need not be a lengthy consideration or review. Is the service doing what we want it to? If the role were to expand, which would be dependent on the Lord President, how much further should that go were there to be a judicial register?

Jackson Carlaw: When the petition first came before us, I was deeply sceptical of it. However, given the reaction to it and to our inquiries, I became more persuaded that it may have merit.

I support what Mr MacAskill said. I wonder whether, subsequent to the incoming Lord President giving us their view, they would offer themselves up to the committee to allow us to examine that or whether they will have the same position on appearing before the committee as their predecessor. It might be worth inquiring about that. First, however, we must see what they have to say on the matter.

I think that the previous Lord President’s principal reason why it was not appropriate to come before the committee was that he did not see how, while in office, it was incumbent on him to do so. Now that he is not in office, I wonder whether he would be willing to do that, to allow us to understand further his perspective on the matter. I was always open to persuasion on the issue. It has been the lack of a reasonable, sustained argument that has led me to remain sympathetic to the aims of the petition.

The clerk has advised me that it is not competent for the committee to initiate a bill of its own. Of course, it is open to any member of the Parliament to do so, in this session or the next.

As Ms Thompson has said, there seems to be a clear public interest in the issue, which has found expression. In the absence of a more substantive argument than the impression that it is not something that people want, the committee should be reluctant to allow the petition to run into the sand. We should do all that we can to sustain it and pursue its objectives for as long as we feel able to do so.

I support the suggestions that have been made, but I wanted to offer those additional thoughts.

John Wilson: I suggest that, if we are writing to the Scottish Government to seek its views, we get clarification on the further evidence that has been provided by the petitioner regarding the legal advice that the Scottish Government sought.

We have the correspondence that the petitioner received, which states that the Government feels that it is not advisable to release the legal advice at the moment. Could we ask for clarification of when that legal advice was sought and why the Government felt it necessary to seek that advice?

The Convener: Do members agree to the action that has been proposed?

Members indicated agreement.

The Convener: I thank Ms Thompson for attending. I suspend the meeting for a couple of minutes to allow for a changeover of witnesses.

10:12 Meeting suspended.

The petition will next be heard at the Scottish Parliament during late September or early October 2015.

Earlier this year it emerged a secret meeting was held in February between Legal Affairs Minister Paul Wheelhouse and Lord Gill during February – to discuss joint efforts between the Scottish Government and senior judicial figures to undermine proposals for increased judicial transparency.

Some weeks after the meeting, Scotland’s First Minister Nicola Sturgeon issued a letter of intervention declaring she felt judges should be able to conceal their interests and other activities – activities which now extend from shareholdings in corrupt businesses to lobbying for fracking interests to tax avoidance and more. The Scottish Government’s attempt to thwart a register of judicial interests was reported in the media here: INTERESTS INTERVENE: First Minister joins top judge in bid to block register of judicial interests

Legal Affairs Minister Paul Wheelhouse – who attended the secret meeting – was recently accused of misleading msps in an earlier evidence session at Holyrood held in December 2014

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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THE SILENT TYPE: Details of Legal Affairs Minister’s secret meeting with top judge on joint effort to block judicial transparency & register of judicial interests must remain secret – says Scottish Government

Ministers secretly met judicial figures over register for judges interests. DETAILS OF what took place at a secret meeting between Scottish Minsters and the head of Scotland’s judiciary over proposals to increase transparency of the judiciary – must remain secret – says the Scottish Government – who have today blocked the release of discussions between judges and politicians in response to a Freedom of Information request.

The secret meeting between Legal Affairs Minister Paul Wheelhouse and Scotland’s now retired top judge Lord President Lord Brian Gill (73) and his aides was held in February – to discuss joint efforts between the Scottish Government and senior judicial figures to combat a long running Scottish Parliament investigation into proposals to increase transparency of the judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The existence of the secret get together between Scottish Government Ministers and judges desperate to conceal their vast and varied interests from the public – only came to light in a letter of intervention from Scotland’s First Minister Nicola Sturgeon to the Scottish Parliament’s Public Petitions Committee at the end of March.

Releasing only a few unrelated sentences in heavily censored documents, the Scottish Government has now claimed it is not in the public interest for their private discussions with the Lord President and his advisers on how to cover up judges vested interests – to be disclosed to the public or media.

Within the sparse details of what has now been disclosed, a picture is beginning to emerge of a concerted joint effort between the Scottish Government and the judiciary to block any moves to advance the debate on judicial transparency – with civil servants reporting back to to the Judicial Office on their efforts to thwart calls to require judges to declare their interests.

The heavily censored documents – disclosed in response to the FOI request, reads as follows:

From: [Censored] Sent: 04 February 2015 09:43 To: [Censored] CC: Humphreys, Steve Subject RE: Meeting with Mr Wheelhouse

Thank you for this. I agree that the meeting went well and your note accurately reflects what was discussed and agreed.. We will keep you advised as to how matters develop.

Regards, [Censored]

From: Flinn, Roddy Sent: 03 February 2015 17:32 To: [Censored] Cc: Humphreys, Steve Subject: Meeting with Mr Wheelhouse

I thought our meeting today was very helpful. I think the key points, in short summary, are these:-

We are all content with the timescales and direction of court reform, though we know we have a busy year ahead.

[Censored] [Censored] [Censored] [Censored]

Happy to discuss further, Roddy Flinn, Legal Secretary to the Lord President, The Lord President’s Private Office

Both the Scottish Government and Judiciary of Scotland are already on the record in opposing the proposal to create a publicly available register  – which would see members of the public, court users, lawyers and the media all able to check out the vast wealth and connections of Scotland’s mega powerful, mega rich judges.

Scotland’s now former top judge Lord Gill refused several invitations to attend the Scottish Parliament and give evidence to MSPs, and Legal Affairs Minister Paul Wheelhouse – who also attended the secret meeting – was recently accused of misleading msps in an earlier evidence session at Holyrood held in December 2014.

The Scottish Government have now said it is not in the public interest for their ‘high quality policy and decision making’ private discussions with the judiciary on joint efforts to shut down debate around making the judiciary more transparency – to be revealed.

Jan Marshal – Deputy Director of the Justice Directorate, for the Scottish Government said: “An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation of the Scottish Government’s policy on a range of issues including a register of judicial interests.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.

We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.

However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions.

This means that officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications.

Their candour in doing so will be affected by their assessment of whether the discussions on the issues will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while lit is still under discussion and development”

The move by the Scottish Government to keep their discussions with Lord Gill secret comes after First Minister Nicola Sturgeon personally intervened in the petition, earlier in March, reported here: INTERESTS INTERVENE: First Minister joins top judge in bid to block register of judicial interests

The First Minister also repeated claims made by Lord President Lord Brian Gill (73) – who accused “aggressive media” and  court users in an attempt to thwart the Scottish Parliament probe into why judges are so secretive about their vast wealth and connections.

However, neither the First Minister or Paul Wheelhouse revealed any details of what took place at the meeting to MSPs who are investigating calls to create a register of interests for judges.

Writing in the letter to John Pentland MSP, Convener of the Public Petitions Committee, First Minister Nicola Sturgeon said: “This petition calls on the Scottish Government to create a Register of Interests for the Judiciary. The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards – the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary – are sufficient. These safeguards, together with the register of judicial recusals, are sufficient to protect individuals from judicial bias.”

“Further to the evidence that the Minister for Community Safety and Legal Affairs, Mr Wheelhouse, gave to the Committee on 9 December 2014, he discussed this petition when he met the Lord President in February. The Minister acknowledged the Lord President’s concerns about the introduction of a register of judicial interests. The breadth of such a register would make it virtually unworkable. It would need to cover not only financial interests, but also memberships of groups and associations and familial and social relationships. Even so, such a register might not capture relevant issues that could arise.”

“The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves. The Lord President has cautioned that such a register could also have unintended consequences. Consideration requires to be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. In addition, there is currently no evidence that judges who should have recused themselves from cases have not done so.”

The judicial transparency proposals – under investigation by MSPs since January 2013 – call for the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The petition has cross party support from msps who backed a motion urging the Scottish Government to create a register of judicial interests at Holyrood on 7 October 2014 – reported along with video footage and the official record, here: Debating the Judges.

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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TOO MANY SECRETS: Legal Affairs Minister ‘anti-transparency’ evidence to MSPs a ‘poor substitute for top judge’ as Scottish Parliament Petitions Committee consider next move on proposal to create a register of interests for judges

Minister fails to convince MSPs judges wealth & links to big business should remain secret. MSPs from the Scottish Parliament’s Public Petitions Committee are now deciding their next moves in their investigation of proposals to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary, after taking evidence from Paul Wheelhouse – the Minister for Community Safety & Legal Affairs.

The Petition Committee’s evidence session with Mr Wheelhouse, taking place at Holyrood on Tuesday 9 December, published today in it’s entire written record & accompanied by video footage, also heard of comparisons with a US register of financial interests for judges which could serve as a model for any register of judges interests in Scotland.

Petition PE1458 – a proposal to increase judicial transparency and submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

Legal insiders who have studied Mr Wheelhouse’ evidence believe the Minister gave several misrepresentations to members of the Committee about interests disclosures of Scotland’s judges. A Scottish Parliament insider branded Mr Wheelhouse as “anti-transparency” and “a poor substitute for Lord Gill”.

Lord President Lord Brian Gill – Scotland’s top judge has refused several invitations to appear before the Scottish Parliament and explain his opposition to the creation of a register of judicial interests.

Mr Wheelhouse also followed Lord Gill’s lead in criticising the media, implying a register of judicial interests may cause judges some problems if the press find out more about judges secret interests, such as tax avoidance, investments in companies with criminal records, criminal records & convictions, and other matters the judiciary prefer not to reveal to the public.

None of Mr Wheelhouse’ reasons against a register of interests for judges were accepted by members of the Petitions Committee.

It also became clear from admissions by Mr Wheelhouse’ civil servants they and Mr Wheelhouse had not even met Lord Gill, or the new Judicial Complaints Reviewer – Gillian Thompson – who. it was confirmed, had not even bothered to reply to the Petitions Committee request for sight of the latest JCR annual report.

It also came out during questions from MSPs that neither the Minister or civil servants had yet had sight of Lord Gill’s proposed changes to the complaints rules – even though the consultation held by the top judge on rules changes had ended over a year ago.

Input in the debate from new Committee member Kenny MacAskill was also lampooned by parliamentary insiders, noting the sacked Justice Secretary’s attempt to criticise how judges are selected in America, gave little weight to reasons to conceal the secrets of wealthy Scottish judges. Mr MacAskill was rushed in to the Petitions Committee to replace the popular Chic Brodie – who supports transparency and declarations of interests.

Legal Affairs Minister Paul Wheelhouse evidence to Petitions Committee Petition 1458 Register of interests for members of Scotland’s judiciary

Judiciary (Register of Interests) (PE1458)

The Convener:The next item of business is an evidence-taking session with the Scottish Government as part of the committee’s consideration of PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. Members have a note by the clerk and the submissions.

Nothing has been received from the Judicial Complaints Reviewer. However, the petitioner notified the clerk that the JCR’s annual report to 31 August, which covers the tenure of the previous office-holder, Moi Ali, was published on Friday. Some members might have already received it.

I welcome Paul Wheelhouse, the Minister for Community Safety and Legal Affairs. He is accompanied by Kay McCorquodale and Catherine Hodgson from the Scottish Government’s civil law and legal systems division.

I invite the minister to make a brief opening statement of approximately five minutes.

The Minister for Community Safety and Legal Affairs (Paul Wheelhouse): Thank you for inviting me to speak to the committee today.

I welcome this further consideration of the issues around a register of interests for the judiciary and, in particular, the sufficiency of the existing safeguards.

The Scottish Government takes the view that it is not necessary to establish a formal register of judicial interests. That is because, as my predecessor, Roseanna Cunningham, has stated, the Scottish Government considers that the current safeguards are sufficient to ensure the impartiality of the judiciary in Scotland. There is no evidence to date that the safeguards have failed.

There are three important safeguards. The first is the judicial oath, taken by all judicial office-holders before they sit on the bench, which requires judges to

“do right to all manner of people … without fear or favour, affection or ill-will.”

The second safeguard is the statement of principles of judicial ethics, which states at principle 5 that all judicial office-holders have a general duty to act impartially. In particular, it notes:

“Plainly it is not acceptable for a judge to adjudicate upon any matter in which he, or she, or any members of his or her family has a pecuniary interest.”

The third safeguard is in the Judiciary and Courts (Scotland) Act 2008, which contains provisions to regulate and investigate the conduct of judicial office-holders. Under section 28, the Lord President has a power to make rules for the investigation of

“any matter concerning the conduct of judicial office holders”.

The Complaints about the Judiciary (Scotland) Rules were updated in 2013. In autumn 2013, the Lord President also consulted on the adequacy of the rules. The former Judicial Complaints Reviewer contributed to that consultation. I understand that new rules, together with accompanying guidance, will be published early in 2015. The new rules will simplify the complaints process for all concerned and will clarify what can be properly investigated.

In addition, as members are aware, on 1 April 2014, the Scottish Court Service set up a public register of judicial recusals, following the former JCR’s call for greater transparency and accountability and the informal meeting between yourself, convener, the deputy convener at the time—Chic Brodie—and the Lord President. The register sets out the reason why a member of the judiciary has recused himself or herself from hearing a case. That is a welcome addition to the safeguards that I have already mentioned.

With regard to the complaints system, I am aware of the criticisms that were made in the former JCR’s annual report, which was published last week. I acknowledge the former JCR’s positive influence, during her time in office, over the handling of complaints about judicial conduct. That has contributed to the improvements that are being made to the complaints system.

It is, of course, of vital importance that judges are seen to be independent and impartial. They must be free from prejudice by association or relationship with the parties to a litigation. They must be able to demonstrate impartiality by having no vested interest, such as a pecuniary or indeed familial interest, that could affect them in exercising their judicial functions.

Setting up a register of judicial interests would be a matter for the Lord President, as head of the judiciary in Scotland. The Lord President takes the view that a register of pecuniary interests for the judiciary is not needed and that a judge has a greater duty of disclosure than a register of financial interests could address. The statement of principles of judicial ethics states that a judge’s disclosure duties extend to material relationships, and the new register of recusals addresses that issue.

It is also important to bear in mind the potential downsides of establishing a register of judicial interests. The Lord President said in his written evidence to the committee that it is possible that

“information held on a register of judicial interests could be abused.”

He went on to say:

“If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequences of eroding public confidence in the judiciary”.

The Lord President provided further information about the new register of recusals in his letter to the committee of 21 November, which records that all but two judicial recusals were voluntary. There is no record of a case in which a judge or sheriff who has an interest that would justify recusal has had to recuse him or herself after a party has raised the matter. There is, therefore, no evidence to demonstrate that the existing recusal system is not working.

I acknowledge the work that the committee has done in taking forward the issues that are raised in the petition. As the convener acknowledged in the chamber debate,

“the New Zealand bill was ultimately withdrawn on the basis that agreement was reached to improve the rules on recusals and conflicts of interests.”—[Official Report, 9 October 2014; c 64.]

We have similarly had the opportunity for open discussion of these issues. Improvements have already been made in Scotland, such as the introduction of the public register of judicial recusals, and improvements to the complaints rules are about to be introduced. The Scottish Government’s position is that a formal register of judicial interests is neither practical nor necessary.

I am happy to take questions.

The Convener: Thank you, minister. Why should the judiciary be treated any differently from other holders of public office, such as ministers, MSPs or MPs?

Paul Wheelhouse: The point that was made by the Lord President in his letter of 21 November, to which I just referred, is pertinent. I recognise that, as politicians, we have a duty to be accountable to the public who elect us, and we need to be able to demonstrate that we do not have any conflicts of interest. However, the position of the judiciary is somewhat different. As the Lord President outlined, judges are not able to answer for themselves if they are criticised or attacked for their interests, which means that they are vulnerable in that sense. In addition, they or their families might be open to threats or intimidation if property details were registered or if other details were shared that might cause security concerns.

In my previous role, I was aware of Scottish Environment Protection Agency officials who were stalked and harassed on social media, as were their families, and who were being regularly physically and verbally threatened by individuals who were allegedly involved in serious organised crime. I have therefore seen that people of ill intent can attempt to intimidate officials.

The more we protect the privacy of the judiciary in relation to details that could otherwise create security concerns for them, the better, as that will ensure that no one attempts in any way to influence judges’ decisions.

The Convener: How do you respond to the argument from the petitioner and the previous JCR that the current system does not provide individuals with sufficient protection from judicial bias?

Paul Wheelhouse: I am aware of those concerns. I recognise the genuine concerns that have been raised by members of the public, including Mr Cherbi, and, indeed, by committee members during the debate on 9 October. I stress that no one is pointing the finger of blame at any particular judge, but I am concerned to ensure that there is a perception that the judicial system in Scotland is above reproach and that there is no danger of bias in the decision-making process.

The concern that has been expressed has been addressed in a number of respects. We have the JCR and the ability to lodge a complaint against the judiciary if a conflict of interest that has not been disclosed comes to light. There is, therefore, a mechanism for people to raise a complaint, which the JCR can take forward.

As I said in my opening remarks, we have no evidence to date to suggest that anyone has been forced to recuse themselves after someone has raised a conflict of interest. In every case so far, the judge concerned has brought forward their own issues and therefore recused themselves. I am aware of two other cases, one of which involved Sheriff Cowan, who said that her membership of the RSPB might be perceived as a conflict of interest. She put that to both parties in the case, who were given the option to decide whether to allow her to continue in her role or whether she should recuse herself. Ultimately, the defendant in the case asked her to recuse herself.

The process seems to work, and therefore we have no evidence—to date, at least—to suggest that any such bias has been identified in any court case.

The Convener: But how will the parties know that there is a conflict if there is no register of interests? They are not psychic.

Paul Wheelhouse: I take the point. I will take forward these concerns when I meet—for the first time; I have not yet met them—Lord Gill and the new JCR, Gillian Thompson OBE. I will raise the issues in the context of wider discussions and see whether they have any thoughts.

The principle is whether there should be a public register. I note for the record that New Zealand, which was the prompt, if you like, for the matter coming before the Scottish Parliament, has decided to drop the proposal for a public register and instead strengthen its recusal process and complaints procedure. A recusal process and a complaints procedure are already in place in Scotland, and the rules on the complaints procedure are being updated by the Lord President. Those systems are being deployed in New Zealand as well, rather than a public register.

There are concerns about ensuring that there is no undue influence over or harassment of the judiciary as a result of information that they present in a register. In any case, a register could never be completely complete, if I can use that phrase, because it is difficult for a judge to anticipate the full range of cases that might come before them. They could have to declare absolutely everything—every person they know, every organisation they are a member of and every financial interest that they have—yet that might be entirely unnecessary given the case load that comes before them.

The Convener: Exactly the same is true for ministers. You are not expected to declare every single aspect. There is a laid-down procedure for what ministers—and indeed MSPs—have to disclose. No one is asking us to be psychic, but we need to make sure that we follow the rules. If they are good enough for us, why are they not good enough for judges?

Paul Wheelhouse: I take the point entirely. It is entirely appropriate that we declare that information as ministers and MSPs, and, indeed, that MPs do the same. However, we have the opportunity to answer for our actions and get our point across in a way that judges might not be able to—albeit that sometimes it does not feel like that, in terms of the media. As politicians, we can answer for ourselves, and we are usually pretty robust when we do so. It is more difficult for members of the judiciary, and I think that Parliament has to recognise that. They are in a different position and are unable to answer for themselves in the way that we would.

The Convener: I must say that I have not noticed that judges have been slow to come forward in the Sunday Mail recently, but I will leave it there.

David Torrance (Kirkcaldy) (SNP): Good morning, minister. According to the Lord President’s letter to the committee of 21 November, new rules for the judiciary and new guidance are to be published early in 2015. Do you think that they will go some way towards addressing the petitioner’s concerns?

Paul Wheelhouse: That is a very good question—congratulations on being chosen as deputy convener, by the way.

We will have to leave it to the Lord President to provide a detailed response to the issues that were raised by the former JCR and in the most recent annual report. I will look to discuss those issues with Lord Gill when I meet him in due course.

I will bring in Kay McCorquodale to tell you about the detail that we are aware of, but I have every confidence that the Lord President has listened to the criticisms. Moves have already been made to address some of the concerns about the complaints procedure that have been raised by the committee and, importantly, by the former JCR, Moi Ali. Her report raises some concerns about specific cases, and we want to make sure that the complaints procedure addresses all of them. As the minister, I will look to ensure that the procedural weaknesses that have been identified are addressed in due course.

Kay McCorquodale (Scottish Government): Scottish Government officials are in exactly the same position as the minister, in that we have not seen the draft rules. We know that there has been a consultation, and that the JCR fed into it. We anticipate that her concerns will have been addressed. We will meet officials from the Lord President’s private office, and I am sure that they will let us see the rules when they are in a position to share them with us.

John Wilson (Central Scotland) (Ind): Good morning, minister. I welcome you to your new role as the Minister for Community Safety and Legal Affairs.

You have laid out your defence for not having a register. The petition calls for a register to be set up to ensure that the public can have confidence in the judiciary in Scotland. Earlier this year, an article in The Guardian highlighted problems that had been identified in England and Wales to do with who judges the judges.

Are you 100 per cent confident that every judge and every sheriff will recuse themselves when they have an interest that is relevant to the case that they are considering? The petitioner feels that if we do not have on public record information to tell us whether a sheriff or a judge has an interest in the issue that they are considering or in the individual who is before them, that information might come out at a later date and the person who appeared in court might feel that, in the circumstances, they were unfairly treated or unfairly judged.

Paul Wheelhouse: Thank you for your welcome, Mr Wilson.

You raise some highly significant issues. You asked whether I could give a 100 per cent guarantee that every judge will always recuse themselves appropriately. It would be unreasonable for me to say that I can give such a guarantee, just as I cannot be 100 per cent certain that every MSP, every MP and every person in public life, such as celebrities, will always declare their interests. However, I am confident that the system has procedures to address that—or will have, once the reforms to the complaints procedure have been carried out.

Public confidence in the judiciary is extremely important. You hit the nail on the head as far as the rationale for the debate that we are having is concerned. We want to deliver confidence in the judiciary and to ensure that that is maintained. We tried to establish whether any definitive surveys had been carried out on confidence in the judiciary. To date, we have not been able to identify such a survey but, from a personal perspective, I do not have any sense that there is widespread concern about the judiciary or a lack of confidence in the judiciary. There might be disagreements from time to time over the outcome of particular cases, which is entirely understandable, given that there are two parties to a dispute—a defendant and a prosecutor. However, I do not have the impression that there is widespread concern about the judiciary.

How do we ensure that confidence is maintained, and that the ability of the judiciary to be unbiased is never a concern? We need to have a robust system for recusals in place. We are developing that and, at least to my mind, it seems that the judiciary are using the recusal process appropriately.

Do we have a perfect complaints procedure? Apparently not. I recognise the points that the JCR made in her report. I am confident that the Lord President will reflect on those and will reform the process.

Are there sanctions for those who fail to recuse themselves? Yes, there are. If a judicial office-holder breaches the rules and a complaint is made that they should not have taken a particular case, for example, there might be legitimate grounds for an appeal. In such a case, the Lord President may give the judicial office-holder formal advice about what they have done, or a formal warning or reprimand, which would damage their reputation.

Measures are in place to address such situations should they arise, but I recognise the concern about the fact that the recusal process is shrouded in privacy, to some extent, because it happens within the judiciary and is not open to public scrutiny. I will look to discuss with the Lord President and the new JCR, Gillian Thompson, whether they have any suggestions as to how that might be addressed in future.

John Wilson: You are aware, however, that recusal is voluntary. I welcome the Lord President’s submission on the number of recusals, and you have mentioned Sheriff Cowan’s decision to recuse herself from a case that she was hearing on wildlife matters, but the point is that recusal is still voluntary.

A member of the public or someone appearing before the bench may become aware that a sheriff or judge may have a particular interest in an issue after the case and beyond the period of the appeals process, which is very limited—it lasts three months, as I understand it. The information that a judge or sheriff had a particular vested interest in a case that they were hearing may come out 12 months or two years down the road.

How does it give confidence in the judicial system if people feel that the process for complaining about judges is, as you said, shrouded in secrecy? How do we give the public more confidence that they will be dealt with without fear or favour when they appear before a sheriff or judge?

Paul Wheelhouse: I certainly note the points that you have made. There are three possible scenarios when it comes to recusal.

In the first, people voluntarily recuse themselves. They identify themselves as a risk, and they decide for themselves that, because the issue is so significant, they will voluntarily recuse themselves from the case.

The second scenario involves an element of perception. The member of the judiciary concerned might not believe that the issue will materially impact on their decision, but they offer the information to both sides in the case and leave it to them to decide whether the member of the judiciary should recuse themselves. That has happened twice, to my knowledge, so the system has worked.

The third potential scenario is where a judge or sheriff who has an interest that would justify recusal says nothing about it but has to recuse themselves during the court case, when a party raises the matter. We have no record of that happening so far. Further, to date, no information has been provided to me to indicate that a conflict of interest that has not been identified during a court case has been revealed only thereafter. I appreciate that the recusals process is relatively new, and I cannot guarantee that such a scenario has never happened in the past, but the process is up and running now.

Perhaps we have not emphasised this enough, but the oath that the judiciary must take is quite onerous and clear in requiring members of the judiciary to assess potential conflicts of interest under ethical guidance.

The Convener: The big issue that I and my colleagues have been pushing is that it is assumed that those who appear before a judge have some form of psychic powers. How will they know whether there is a conflict? If there is no register, they will not be aware of it.

Until Chic Brodie and I met the Lord President, there was no system for recording recusals. We made that point to the Lord President, and—in fairness—he agreed to put a system in place, but it came into force only in April. It is only since then that we have been able to assess whether judges have recused themselves. Previously, that was a complete mystery; even recusals were a mystery.

You make out that everything is done fairly and is all above board. However, an ordinary person who appears before a judge does not have a clue whether there is any conflict of interest. That is the key point. We want—or rather, the petitioner wants—a system that is similar to the system for other public officials.

Your only real argument is that judges cannot defend themselves. I am sorry, but that is not a very strong argument.

Paul Wheelhouse: If I may say so, convener, you misrepresent what I said. I did not say that that is the only ground for my view. There are serious concerns about potential influence on the judiciary as a result of revealing their interests in a public register. That would open them up to potentially hostile and aggressive press action, which might apply pressure on them to come down in a particular way in an adjudication.

In some cases—as I said—if members of the judiciary reveal property interests or anything that might give away a physical address, that could put them at risk of physical threats. I have experience of that from working with colleagues in the Scottish Environment Protection Agency who have been threatened by those who are involved in criminal activity.

We must be very careful what we wish for. I take on board your points about the need for transparency. People have to know that the judicial service system is fair, above board and unbiased, and it is entirely right that the committee has taken a strong interest in that.

I appeal to the committee to think about the potential consequences of having a public-facing register that could expose members of the judiciary to undue influence from outside the court process and put them or their families at risk. We must recognise that many members of the judiciary deal with extremely sensitive issues, and often extremely violent people, in the context of their work. That is different from the work of politicians.

It is important to recognise that judges would not have the right to defend themselves—I raised that point, and it is fair for the convener to mention it—but I have wider concerns about the risks that such a register would place on the judiciary.

The Convener: I am a bit conscious of the time. I will bring in Kenny MacAskill before coming back to John Wilson but, before we leave that point, I stress that no member of the committee wants to put judges at risk from any security concerns. Ministers and other MSPs do not reveal their home addresses, and we would have a basic procedure that followed that model. I do not want the minister to misrepresent what I suggest. We would obviously have a register that respected the security concerns of judges; to do otherwise would be a very strange policy.

Kenny MacAskill: I will pursue the issue of public interest. One jurisdiction that has a register is the United States. I am going only by apocryphal tales, but I have heard of potential candidates for the Supreme Court being dissuaded, if not rejected, by House committees in which they have been pilloried. The issue is where the balance is struck. Is there any jurisprudential evidence from the United States on whether justice has been enhanced or whether the public opprobrium wreaked on many potential nominees for the Supreme Court has dissuaded people from going into that theatre at all?

Paul Wheelhouse: Mr MacAskill raises an important point. The petitioner, in his submission of 21 October, drew attention to the register of interests in America. The origins of the United States as a country explain to some degree the formal regulation of Government ethics there.

There has been great attention to the issue since the Watergate scandal in the 1970s, and the Ethics in Government Act of 1978 was brought in to require federal judges to file annual financial reports and provide a full financial disclosure to a committee. The purpose is to expose judges’ financial holdings to public scrutiny, which assists them in avoiding conflicts of interest.

A system is in place in the United States. I have seen some of the reporting on particular judges—I will not quote it here—and the kind of details that are posted. Largely, they are on things such as retirement accounts and life insurance policies. I am not sure whether that adds any value, but it opens people up to being pilloried in the way that Mr MacAskill described and to having every aspect of their financial activities pored over in enormous detail.

When people invest in a general insurance policy or a pension fund, they have no day-to-day involvement in the decisions about how that money is invested. I am not sure how relevant such information is to the process. There was one case in Scotland in which a judge had a pecuniary interest, but it was clear that the decision in the case would not have influenced the value of the shareholding, so it was unlikely that the pecuniary interest would have had any influence.

I do not know whether Kay McCorquodale or Catherine Hodgson has any information of the kind that Mr MacAskill asked for about the negative consequences of having a register in the US.

Kay McCorquodale: I do not have any evidence of that to hand. It is interesting that the register there deals only with financial holdings, as Mr Wheelhouse just explained—it does not cover personal interests or anything else, so it is very narrow. In addition, it covers only federal judges; it goes no wider than that.

Anne McTaggart (Glasgow) (Lab): I welcome the panel and I welcome the minister to his new role. There has been discussion about the differences between our role as elected representatives and the role of judges when it comes to declaring information, but will you expand on why you think that judges should not have to declare information, whereas we have to? I am not fully convinced by that argument.

Paul Wheelhouse: I certainly recognise the point, which the convener also made. I do not want to misrepresent his approach. I am sure that his intent is entirely above board; I do not wish to suggest otherwise.

We have concerns on two fronts. First, as MSPs, we disclose our pecuniary interests and any other things that we perceive might give rise to a conflict of interests. A lot of trust is put in us to declare matters that we believe might influence our decision making as MSPs, whether as ministers, committee members or back benchers. We are trusted to do that, and I believe that the Parliament has a good record on that.

If there is any criticism of an entry in the register of members’ interests, we have the ability to defend ourselves. We have the right to do so and we have the forum to do so—in Parliament, we can put things right on the record. I am not a member of the judiciary and I have no axe to grind in this particular fight, other than that I think that there is an issue of fairness, in that judges do not have the same ability to defend themselves in public as we have.

That is not to say that we have no interest in ensuring that everything is above board. I recognise the points that the committee has made. As I indicated, I will look to get feedback from the new JCR, Gillian Thompson, and the Lord President—when I get the chance to meet him—on what they think is necessary to give the public confidence that, although the system is largely hidden from view, it is operating robustly and that those who are perceived to have a conflict of interests in a case raise that and recuse themselves voluntarily or at least make both parties to the case aware that there is a risk of a conflict of interests and give them a choice.

It is extremely important that the system is seen to be properly and robustly applied and that there is no subsequent criticism of the kind that Mr Wilson fairly raised, whereby someone might have been totally unaware of a conflict of interests that the judge who oversaw their case had and it might be too late to do anything about it under the appeals process. We need to get feedback from the Lord President and the new JCR about how that should be dealt with.

Angus MacDonald: Congratulations, minister, on your new portfolio. You have touched on this, but will you expand on the Scottish Government’s argument that the information on a register could be misleading, as it would not cover all the conflicts that could arise? Do you have a view on the argument that, even if a register is incomplete, it could still have value in increasing transparency?

Paul Wheelhouse: If we want to draw people’s attention to something on the register of interests, we can do that at the beginning of a speech. That relates to Anne McTaggart’s point. We can say, “Presiding Officer, I bring to your attention my entry in the register of interests,” and we can flag up any concerns that members should be aware of. We can do that case by case.

If people had to write their entry in a register in advance, it could be difficult to define exactly what should be recorded. If we are dealing with general cases—not specialist cases in a judicial sense—it is difficult to imagine that the register could cover every scenario in which there could be a conflict of interest, every potential plaintiff or defendant who might come forward in a court case, or every interest that might have to be declared.

The register would have to be either entirely comprehensive or targeted. If people have not anticipated that a case might come forward and have not put something on the register of interests, that could be misleading, because it could look as if there was no conflict of interest; something would subsequently have to be added in advance of a case to ensure that everything was clear. I am not sure that it would be easy to operate such a publicly facing register and to ensure that it fully encompassed all potential conflicts of interest that a judge or sheriff could find themselves involved in.

We have heard about the example of such a register in the US but, as Kay McCorquodale said, it covers only the financial aspects of judicial interests. It does not cover personal relationships or memberships of bodies, which might be an issue. A Scottish register would have to be wider than the one in the US to cover all those potential issues, and it would become difficult to manage. At what point would a judge decide that they knew someone well enough to put that on a register of interests? If you meet someone on the bus, do you have to declare as an interest the fact that you had a friendly conversation with them, or is the register for people with whom you have been lifelong friends? That is difficult to define, and I welcome the committee’s views, but I do not see the case as compelling at this point.

Angus MacDonald: I find it strange that, in America, where it is a requirement to register financial interests, judges do not have to register membership of bodies. I was not aware of that.

Paul Wheelhouse: It appears that there is no requirement to register memberships. I find that slightly odd if the intent is to capture all potential conflicts of interest. We have examples in Scotland of people recusing themselves for being members of organisations. In that sense, we are one step ahead of the US.

Sheriff Cowan recently withdrew from a case voluntarily after having raised the issue with both parties to the case. As she had been a member of RSPB Scotland, and as witnesses from the RSPB were going to appear, there was the risk of a perceived conflict of interests, rather than an actual conflict of interests. She gave the parties the option and they asked her to recuse herself. The system worked well in that case.

We have a system that appears to work, but I appreciate the concerns about the need to ensure that it works every time. If one case goes through where it does not work, that is obviously a concern, but we have no evidence to date that that has happened, so let us look at the glass as being half full.

The Convener: I will let John Wilson in again, because I cut him short earlier.

John Wilson: There is an interesting debate on the constitutional issue of the appointment of Supreme Court judges in the United States of America. I am sure that the Judicial Appointments Board for Scotland will look carefully at how judges are appointed to the UK’s Supreme Court and will try to draw on those rules. However, I want to concentrate on the register of interests.

You said in your opening statement that you are aware, because of your experience in your previous ministerial role, that senior officials at SEPA are sometimes stopped and harassed by elements in the community. In your new role as Minister for Community Safety and Legal Affairs, do you intend to introduce legislation to protect public office-holders and their families from being harassed, stalked and approached by people involved in criminal activity? If part of the reason for not having a register is that judges and sheriffs might be stalked and harassed by elements in society, surely we must examine the legislation that protects them from such behaviour.

Paul Wheelhouse: I assure Mr Wilson that, in my previous role, we introduced measures in the Regulatory Reform (Scotland) Act 2014 to protect SEPA officials, which brought their protection into line with that of other key emergency workers.

I take Mr Wilson’s wider point about the judiciary. It would clearly be a criminal offence to do what has been described, but there is a great argument for prevention over cure. Why create a situation where we have to make a new protection for judges when we do not have to put them in that position in the first place? If we can avoid giving away sensitive information that might lead to them being coerced in any way, that will be better than having to resolve the situation after the event by applying legislation, whether old or new.

Mr Wilson makes a fair point, which is that the Government has a duty to protect people in such a situation. I assure him that I will do everything in my power to help to protect members of the judiciary from being threatened. However, it is better to prevent a situation than to have to resolve it.

Kay McCorquodale can give us some guidance on protection.

Kay McCorquodale: As the minister said, this is a serious consideration and we take it into account.

Judicial appointments to the United Kingdom Supreme Court were mentioned. When the Supreme Court was set up, it was decided that it would not be appropriate or feasible for it to have a comprehensive register of interests, because it would be impossible to identify all the interests that might conceivably arise. The court has a formal code of conduct instead. That is similar to our position in Scotland, where we have a statement of judicial ethics.

The Convener: I would like to follow up that point, but I do not want to cut John Wilson off again, so I will let him continue.

John Wilson: Thank you, convener. Minister, you said that you would be wary of having sensitive information put on the public record. Can you define “sensitive information”? Is that just financial information or would it include family relationship information? We could have a judge or a sheriff hearing a case where their son, daughter, mother, father, aunt or uncle was appearing before them to defend or represent someone. Can you define what you mean by sensitive information appearing on a register?

Paul Wheelhouse: I can give examples, but I would need guidance from justice professionals and the police as to what might constitute information that could be risky in terms of modern technology and the ability to attack or damage the interests of individuals. Information on property might be sensitive. The convener made a fair point that personal household information should be kept off any register; that would be sensible if we ever had a register. It would be appropriate to keep residential information private, to protect the safety of the individual and the family and to ensure that it was not a honey pot for those who might want to coerce someone in advance of a decision.

Other sensitive information would be anything else that threatens people’s safety or potentially opens them up to coercion in relation to a court case. We want to protect the integrity of the decision-making process in court, as well as the safety of those making the decisions.

Kay McCorquodale has just pointed out to me that, in the US, the assets, income and liabilities of judges, spouses and dependent children must all be disclosed, although information may be redacted to protect the safety of individuals if they are in danger. That issue has obviously been considered in the US and the approach there might be worth the committee’s consideration.

Kenny MacAskill: It seems to me that it is for those who wish to have a register to define it. What John Wilson said reminded me of a recent high-profile case relating to a football club, in which the judge declared that he was a season ticket holder at another football club. Is it your understanding that that would not constitute a financial interest that he would be required to declare? The judge did not recuse himself but made the information publicly available, which seemed to me the right thing to do.

Do you have any comments on the generality of what would be registered in the proposed register? It seemed to me that the judge in that case was correct to make his declaration. Perhaps the judgment about what to declare should be made with regard to conflict of interest rather than precise rules. Do we expect a judge to declare an interest if he is a season ticket holder at a football or rugby club?

Paul Wheelhouse: Mr MacAskill is absolutely right that we must be reasonable about this. For example, it is left to MSPs to judge what they believe constitutes, or might be perceived to constitute, a conflict of interest and to declare such matters voluntarily, if need be. There is a section in the register of members’ interests where MSPs can voluntarily declare things that might go beyond the minimum requirements, and I am sure that most if not all MSPs use that facility.

I think that we have to rely on the oath and the guidelines for members of the judiciary on what might be, or be perceived as, a conflict of interest and leave it to them to judge what it is appropriate to declare. I commend the example that Mr MacAskill used of the judge making a voluntary declaration so that there could be no perception of conflict of interest, even though that was not strictly required by the terms of the recusals policy.

We have other examples that we should commend of members of the judiciary behaving entirely appropriately by recusing themselves or giving information that would allow others to decide whether they should recuse themselves. I acknowledge and commend the committee’s role in driving forward and achieving a public register of recusals, which is a welcome addition to the process. That register will help to inform those who are involved in court actions of what constitutes a conflict of interest and will refine the process further.

The Convener: Kay McCorquodale spoke about the Supreme Court. You will be well aware that prior to the setting up of the Supreme Court, the Scottish law lords were members of the House of Lords and had to comply with its register of interests. I am not saying that you have suggested that a register of interests is an alien concept for the Scottish legal system—of course it is not, given that generations of Scottish law lords had entries in the House of Lords register of interests. It is not true that the position would be, “Shock horror! We’ll have to fill in a register.” A register is not a new idea, because generations of law lords used a register. It worked well then, so why could it not work for judges and sheriffs now?

Paul Wheelhouse: That is a fair comment. The law lords had to disclose financial interests. Perhaps it is in areas of pecuniary or financial interests that the public could perceive there to be conflicts of interest. For example, if the judge in a damages case had shares in a company that would be affected by the outcome of the case, that would clearly constitute a conflict of interest.

I can understand why financial interests would be declared under the US position and the disclosure rules for the law lords in the House of Lords, but I think that the petitioner seeks something considerably beyond that in asking for full disclosure of information. As I said, some categories of information might put people at risk of intimidation or intrusive press activity, which would be unhelpful for maintaining—

The Convener: For the record, the petitioner is asking for a register of pecuniary interests.

Paul Wheelhouse: Okay. There are certain bounds: we have discussed property assets, and some safeguards would be needed in relation to personal property, as the convener has identified. There are such examples, and I take that point on board. I would have to take such matters to the Lord President and the new Judicial Complaints Reviewer, Gillian Thompson, in order to get their views.

The Convener: I am conscious of time, but it was important to continue that discussion. Does Angus MacDonald have a quick point?

Angus MacDonald: The minister has just covered the point that I was going to raise.

The Convener: We have a high-quality judiciary, and by European—indeed, international—standards it is remarkably free of corruption, so I would not want to see any other view being promoted in that respect.

However, it is important for ordinary men and women who appear before judges that there is an element of transparency. That is what the committee has pursued, and I thank Lord Gill for agreeing to our request for a register of recusals, which was not in place before we raised the matter in April last year.

Paul Wheelhouse: I welcome that too, and I thank you, convener.

Kenny MacAskill: Paul Wheelhouse mentioned that he is due to meet Gillian Thompson, who has previously held the role of Accountant in Bankruptcy and is a senior civil servant. I wonder whether she can bring a fresh pair of eyes to the matter. Are her views known to you, or could they be provided?

Paul Wheelhouse: I am not yet aware of Gillian Thompson’s views on the matter, but I will be seeking them, and I am happy to invite her to relay those views to the committee in due course.

John Wilson: I put on record my thanks to Moi Ali for the evidence that she has given to the committee in the past. I congratulate her on her comprehensive annual report, which was submitted in August and released last week. It makes very interesting reading, and I hope that the minister will, when he meets the Lord President, raise some of the issues that it highlights.

Moi Ali has raised issues about the judicial complaints procedure, and inferred that when a complaint is made against a judge, it disappears into the ether, and that there is no transparency in how those issues are dealt with.

It would be useful to take on board not only the new Judicial Complaints Reviewer’s view on how she will move forward in her role, but the out-going JCR’s experience in the past three years of dealing with the judicial complaints process, in particular with regard to the way in which complaints were dealt with by the Lord President.

I hope that we can move forward and get a system that everybody feels confident will act in the best interests not only of judges, but of the public and everybody involved in the judicial process.

The Convener: I am conscious of time, minister—

Paul Wheelhouse: I will respond briefly to Mr Wilson. I identify with what he said, and I add my own thanks to Moi Ali, albeit that I was not in post when she was the JCR. I welcome her report, and we will discuss the points that it raises with the Lord President and with Gillian Thompson as the new JCR.

We formally received the report only on 23 October, so the time gap is not quite as big as has perhaps been implied.

The Convener: I back up John Wilson’s point. Moi Ali gave excellent and no-holds-barred evidence to the committee, which was refreshing and very useful.

I suggest that we consider the petition again in the new year, when we can reflect on today’s evidence. We need to look in detail at the previous JCR’s annual report, and at the new rules and guidance that I believe will be published by the Lord President early in the new year.

John Wilson: I agree that we should look at the petition again in the new year. I suggest that we tie that in with the release of the information from the Lord President on the new rules, rather than the committee deciding to discuss the issue only to find out that the new rules have not yet been published.

The Convener: Yes, that is sensible.

Kenny MacAskill: It might be useful to hear in due course, either via the minister or directly from the new JCR, what her view is as a fresh pair of eyes.

The Convener: Yes, that is a good point. Do committee members agree that we will do what we have discussed?

Members indicated agreement.

The Convener: I thank the minister and his two colleagues for coming along. Your evidence has been very helpful in enabling us to work out the committee’s next steps, and I appreciate you giving up your time. I suspend the meeting for two minutes to allow for a change of witnesses.

10:54 Meeting suspended.

Scotland’s top judge and Scottish Ministers continue a coordinated opposition the creation of a register of interests. A curious policy for the Scottish Government, considering the First Minister’s words on transparency in other matters. However, a debate in the Scottish Parliament’s main chamber on Thursday 7 October 2014 saw cross party support for the proposal. MSPs overwhelmingly supported motion S4M-11078 – in the name of Public Petitions Convener David Stewart MSP on petition PE1458, urging the Scottish Government to give further consideration to a register of interests for judges.

The parliamentary debate was reported by Diary of Injustice along with video coverage here: TRANSPARENCY TIME: Top judge & Scottish Government told to rethink refusal on declarations of judges as Holyrood MSPs support calls to create a register of judicial interests

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

 

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