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JUDICIAL REGISTER: Justice Committee investigate approach to judges’ interests in other countries – MSPs say ‘Recusals register not comprehensive enough’ ‘Openness & transparency do not contradict independence of the judiciary’

Justice Committee continues probe on Judges’ interests. A SEVEN YEAR probe by two committees of the Scottish Parliament – on cross party supported proposal to create a Register of Judges’ Interests – has called for views on how other jurisdictions tackle both judicial recusals and methods of declarations of judicial interests.

During discussions between members of Holyrood’s Justice Committee on Petition PE1458: Register of Interests for members of Scotland’s judiciary, MSPs expressed the view that openness and transaprency – which the register of judges’ interests petition seeks to create – does  not contradict the independence of the judiciary.

Daniel Johnson MSP stated: “As was the case when we considered the petition previously, I think that there are reasons to examine it. In everything that I say, I bear in mind our duty to uphold the independence of the judiciary, but I do not believe that openness and transparency contradict that.”

Another Justice Committee MSP also expressed views on the completeness of the current Register of Recusals – a register of conflicts of interest which was created by ex Lord President Brian Gill during April 2014 – in response to the petition.

John Finnie MSP said: “I fully endorse Daniel Johnson’s view, and particularly the comment about independence. However, there is an obvious tension here. There is a public expectation—it is not unreasonable, in my view—that there should be no conflicts of interest. Our papers refer to the recusal register, but that does not seem comprehensive enough to me.”

While no reference was made to new evidence submitted to the Justice Committee, documenting work by serving Scottish judges in the Gulf States, a full submission by the petitioner to the Committee can be read in the previous report on Justice Committee work on the petition, here: MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

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

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

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

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

Petition PE1458 Register of Interests for Judges Scottish Parliament Justice Committee 5 Feb 2019

Judiciary (Register of Interests) (PE1458)

The Convener (Margaret Mitchell Central Scotland Scottish Conservatives) :  Agenda item 4 is consideration of two petitions. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper. Paragraph 5 of paper 4 provides the options that are available to the committee when it considers petitions.

The first petition that the committee will consider is PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. The petition calls on the Scottish Parliament

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

This is the committee’s third consideration of the petition. I refer members to annex A of paper 4, which details the response that was received from the Scottish Courts and Tribunals Service. The committee is asked to consider what, if any, further action it wishes to undertake in relation to the petition. The options available include: keeping the petition open; keeping it open and taking additional action, such as writing to the cabinet secretary and/or others; or closing the petition. I seek members’ views.

Daniel Johnson (Edinburgh Southern) (Lab): As was the case when we considered the petition previously, I think that there are reasons to examine it. In everything that I say, I bear in mind our duty to uphold the independence of the judiciary, but I do not believe that openness and transparency contradict that. The Public Petitions Committee took evidence on the issue, but that was some time ago—I believe that it was in 2013—so I wonder whether the committee might want to pull together information regarding how other countries approach the issue. Given that we have a new Cabinet Secretary for Justice, we could perhaps also request his views on the matter.

John Finnie (Highlands and Islands) (Green): I fully endorse Daniel Johnson’s view, and particularly the comment about independence. However, there is an obvious tension here. There is a public expectation—it is not unreasonable, in my view—that there should be no conflicts of interest. Our papers refer to the recusal register, but that does not seem comprehensive enough to me. I agree with the proposal that we should find out about the approach in other countries, particularly New Zealand, as that would be helpful.

Rona Mackay (Strathkelvin and Bearsden) (SNP): I totally agree with Daniel Johnson and John Finnie. More information would be helpful. It is an important issue, and transparency has to be key.

Daniel Johnson: For information, I point out that the bill on the issue that was before the New Zealand Parliament was either withdrawn or defeated, but I understand that a register exists in other jurisdictions. I think that Norway has been mentioned.

The Convener (Margaret Mitchell): Clearly, there are huge issues at stake, and a fine balance has to be struck. I would like to know a little more about how the recusal code or policy works. When a conflict of interest is declared, how much detail is recorded and is it in the public domain? It would be good to look at that.

I get the impression from members that they would like to at least explore legislation in other countries. Norway has been mentioned. New Zealand did not proceed with the proposals, but it would perhaps be good to look at what was said there. As Daniel Johnson rightly points out, we have a new cabinet secretary, so it would be good to seek his views.

Are members content to progress by doing those three things?

Members indicated agreement.

The Justice Committee hearing on Petition PE1458 was also reported in the National newspaper here:

Seventh year of register or judges interests petition

By Martin Hannan Journalist  07 Feb 2019

The committee will also seek the views of Justice Secretary Humza Yousaf

FOR nearly one third of the entire lifetime of the Scottish Parliament, MSPs have been discussing the petition put forward by law journalist and campaigner Peter Cherbi calling for a register of judges’ interests.

Now in its seventh year of consideration, the petition calls on the Scottish Parliament “to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill … or amend present legislation to require all members of the Judiciary in Scotland to submit their interests and hospitality received to a publicly available Register of Interests.”

In the latest development, Holyrood’s Justice Committee has decided to call for more evidence after the Petitions Committee referred the case to them. John Finnie, Highland MSP for the Greens, said: “There is a public expectation – it is not unreasonable, in my view – that there should be no conflicts of interest.”

The committee will also seek the views of Justice Secretary Humza Yousaf.

As a result of the petition, the Scottish judiciary now keep a register of recusals, when a judge or sheriff steps aside from a case.

Cherbi commented: “It does somehow feel like the six years of work from the Public Petitions Committee (PPC) should be put to better use, and work should now begin on creating the register rather than repeating the evidence exercise.

“Seven years is a long time for a petition on transparency, especially one calling for a register of judicial interests to the equivalent or higher standard of the same register which MSPs are required to adhere to.

“I feel we must now move on and take the good work of MSPs on the PPC to bring this register into existence,” he added.

Previously, on the Register of Judicial Interests Petition –

A video report of the Public Petitions Committee backing for the petition can be viewed online here: Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

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

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

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

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

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

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

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

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

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JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

MSPs to consider judicial interests call. A PETITION calling for the creation of a Register of Judges’ Interests in Scotland – which is now in it’s SEVENTH year is to be considered by the Scottish Parliament’s Justice Committee on Tuesday 5 February 2019.

The latest consideration of Petition PE1458: Register of Interests for members of Scotland’s judiciary comes after members of the Justice Committee initially heard the petition in late September 2018 – with several MSPs supporting the view the petition should be taken forward.

During the Committee’s meeting, John Finnie MSP of the Scottish Greens said: “Future generations will be surprised that we do not have such a register already.”

Daniel Johnson MSP (Scottish Labour) said: “We all need to be mindful that we have a legal duty to uphold the independence of the judiciary, but transparency enhances independence. I very much support the comments that colleagues have made. We should take the petition forward.”

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

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

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

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

Video footage of the Scottish Parliament’s Justice Committee’s first consideration of the judciial register petition in September 2018 can be viewed here:

Register of Judicial Interests – Justice Committee Scottish Parliament 25 September 2018

Official Report: Judiciary (Register of Interests) (PE1458)

Margaret Mitchell MSP (Scottish Conservatives) (Convener) : Under item 4, the committee will consider two petitions. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper. The committee is asked to consider and agree what action, if any, it wishes to take in relation to each petition. Possible options are outlined in paragraph 5 of paper 4. I remind members that if they wish to keep a petition open, they should indicate how they would like the committee to take it forward. If they wish to close a petition, they should give reasons. We will consider each petition in the order in which they appear on the agenda.

This is the first time that the committee has considered PE1458. The petition calls on the Scottish Parliament to urge the Scottish Government to introduce a register of pecuniary interests of judges bill, or amend existing legislation, to require all members of the judiciary in Scotland to submit their interests and hospitality received to a publicly available register of interests. Do members have any comments or questions?

John Finnie (Scottish Green Party):  I seem to have mislaid the paper, but from memory there were a number of recommendations around requiring further information. I would support that approach. Future generations will be surprised that we do not have such a register already. We need to be best informed, so I suggest that we get that additional information and consider the petition again.

Rona Mackay (Scottish National Party) :  I agree with my colleague, John Finnie. The Public Petitions Committee believes that a register is not unworkable and recommended it. As John Finnie said, we need to explore the petition further and get as much information as we can so that we can take it forward.

Daniel Johnson (Scottish Labour) : We all need to be mindful that we have a legal duty to uphold the independence of the judiciary, but transparency enhances independence. I very much support the comments that colleagues have made. We should take the petition forward. It makes an awful lot of sense to do exploratory work.

The Convener: Is it the committee’s wish, therefore, that we keep the petition open and seek further information?

Members indicated agreement.

Since the Justice Committee considered the petition last September, there have been explosive revelations in the media in relation to Scottish and UK judges serving in Gulf States regimes and dictatorships, where the same judges are required to swear additional judicial oaths on top of the judicial oaths already sworn in Scotland and the UK.

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

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

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

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

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

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

Two weeks ago, the petitioner was contacted and requested to provide a submission for the Justice Committee’s consideration of the petition.

The submission to the Justice Committee took the following form:

Submission re Petition PE1458 – A Register of Interests for Members of Scotland’s Judiciary

In response to the Justice Committee’s initial consideration of this petition, I agree with the decision by members to seek further and additional information to take the petition forward and create a Register of Judicial Interests for members of Scotland’s Judiciary.

I would also like to submit further developments since members last considered the petition, where reports in the media have revealed senior members of Scotland’s judiciary serving in overseas courts, particularly in the Gulf States such as UAE, Abu Dhabi, Qatar, and others.

It should be of interest to members that in the case of Lord McGhie, who is currently listed on the Judiciary of Scotland’s website as Chairman of the Scottish Land Court and President of the Lands Tribunal for Scotland, the biography of Lord McGhie’s interests does not mention the fact he also serves on the Abu Dhabi Global Market Courts.

Of note, the ADGM Court does list Lord McGhie’s service in Scotland as a member of the judiciary, however the Judiciary of Scotland omit all details of Lord McGhie’s overseas judicial service, as can be noted from the two separate judicial biographies forwarded to the Justice Committee,

An investigation by the Sunday Mail newspaper revealed Lord McGhie has been registered to sit in the UAE for the past two years while he was also dispensing justice at the Court of Session in Edinburgh – yet given there is clearly no mention of his service abroad, and the fact Lord McGhie will be subject to a judicial oath in the UAE as well as adhere to his judicial oath in Scotland, clearly a register of Judicial Interests would require information such as this to be published, while currently, the Judicial Office for Scotland does not publish such information.

It would be useful for the Justice Committee to make enquiries as to the two separate judicial oaths and terms of service which Lord McGhie is subject to, here in Scotland, and in the United Arab Emirates, as clearly, such information should be present in a publicly available Register of Judicial Interests.

The dual service of Scottish judges in overseas jurisdictions, including the Gulf States should be further examined, in the light of the published reports and significant public interest in the cases of lawyer David Haigh, where a Scottish Sheriff accepted Mr Haigh’s account of Human Rights abuses, and torture in Dubai, and the case of Matthew Hedges – held for five months without explanation, then charged with, and found guilty on allegations of espionage.

In recent enquiries with the Judicial Office for Scotland, I have noted there are no recusals by Justices of the Peace since the guidance on recusals was extended to JPs as of January 2018.

However, since Tribunal members interests were added to the recusals register, recusals jumped from around 20 a year to 49 in the past year.

The lack of recusals for Justices of the Peace, who number around 450 and comprise the highest proportion in terms of numbers of Scotland’s judiciary, are worthy of scrutiny, particularly as the Scottish Justices Association have expressed negative sentiments towards reform and transparency in the past, notably in the case of media reports in relation to overseas trips by Justices of the Peace, which are covered in a Sunday Herald investigation forwarded with this submission.

As part of the further information which the Justice Committee may wish to seek on judicial conflicts of interest, I would suggest making enquiries to the Judicial Office on how the guidance on recusals is being implemented, and how far down the line it goes, for instance, in selection and subsequent training of judicial office holders prior to their service on the bench and how such guidance plays a role in every day court proceedings.

The Register of Recusals is available for inspection online http://www.scotland-judiciary.org.uk/68/0/Judicial-Recusals

I also suggest members study the Norway model of a register of judicial interests https://www.domstol.no/en/The-Courts-of-Justice/The-ordinary-courts-of-Norway/Dommeres-sidegjoremal/ and how such a model, with enhancements could be created for Scotland’s judiciary.

From the report of the Justice Committee’s initial consideration of the petition, I agree with the support expressed by members for progressing the petition from Rona Mackay, Daniel Johnson, and John Finnie MSP who stated “Future generations will be surprised that we do not have such a register already.”

The Scottish Parliament, by way of the Public Petitions Committee, MSPs during the full debate in October 2014 and now the Justice Committee have amassed a level of information and submissions on this petition which should go forward in the public interest to create a Registrar of Judicial Interests – and apply the same level of transparency for members of the judiciary, which already exists for all other branches of the Executive and those in public life.

However, the above submission was initially rejected, by a Scottish Parliament clerk – who claimed there was no existing biography for Lord McGhie on the Judiciary of Scotland’s website, and that Lord McGhie was in-fact retired.

The clerk was challenged on his claims after journalists confirmed the existence of the biography for Lord McGhie remained on the Judicial Office website – and that Lord McGhie had in-fact sat as recently as 2018 on cases in the Court of Session, sitting alongside Lady Paton and Lord Drummond Young.

Journalist Peter Cherbi tweeted out the sequence of his findings on twitter, here: Twitter – Content of Judicial Service Bio of Lord McGhie questioned

The clerk, who has since been identified as Seán Wixted – did not reply to the petitioner’s information confirming the existence of the biography of Lord McGhie, nor was any response given as to why court opinions also show Lord McGhie sitting in court, despite the clerk’s claim the judge was retired.

A revised submission to the Scottish Parliament’s Justice Committee contained the following substitute paragraphs:

It would be useful for the Justice Committee to make enquiries in relation to members of Scotland’s judiciary who serve in overseas jurisdictions and details in relation to the two separate judicial oaths and terms of service which judges swear to, in jurisdictions such as the United Arab Emirates and here in Scotland, as clearly, such information should be present in a publicly available Register of Judicial Interests.

The dual service of Scottish judges in overseas jurisdictions, including the Gulf States should be further examined, in the light recent media coverage of the dual service of Scottish judges and significant public interest in such cases.

and added the following suggestion MSPs experienced in the petition should be asked for evidence:

Lastly, and noting the recommendations listed in papers for members consideration of this petition on Tuesday 5 February 2019, I would like to request the Justice Committee invite members of the Public Petitions Committee to give evidence to the Justice Committee on this petition, given the PPC’s six years of experience, dedication and exceptional work on this petition, which has accumulated significant evidence, testimony and backing from all sections of the community in favour of creating a Register of Judicial Interests for members of Scotland’s judiciary.

It was further noted in emails provided to the media the petitioner was not allowed to inform MSPs of the clerk’s demand the submission was edited at the request of the Committee’s own clerk, Mr Wixted.

Previously, on the Register of Judicial Interests Petition –

A video report of the Public Petitions Committee backing for the petition can be viewed online here: Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

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

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

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

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

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

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

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

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

 

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JUDGE THE JUDGE: In public and on camera, Senate Judiciary confirmation hearings for US Supreme Court nominee Brett Kavanaugh demonstrate public, media & elected politicians have a right to know & question views of candidates for the judiciary

Judge Brett Kavanaugh faces Senate Committee. FOR THREE days this week, citizens in the United States of America, and anyone across the globe has been able to tune into the US Senate Committee on the Judiciary nomination hearings of Judge Brett Kavanaugh – for a position on the Supreme Court of the United States (SCOTUS)

The hearings, broadcast via C-SPAN – the Cable-Satellite Public Affairs Network – have been a regular occurrence for several years now, airing to the public hearings where elected senators of the US Senate are able to quiz nominees for judicial posts in the US – including those nominated by the sitting President for a position on America’s top court.

After the death of Justice Anthony Scalia in in 2016, and the blocking of former President Barack Obama’s nomination of Merrick Garland to join the US Supreme Court, President Trump has already succeeded in adding one Justice – Neil Gorsuch to the Supreme Court – in April 2017.

Now, President Trump’s second nomination to SCOTUS – Judge Brett Kavanaugh – who has stirred up significant controversy amid allegations of thousands of papers being withheld from scrutiny during his involvement in previous White House administrations – looks likely to be confirmed, despite concerns on Kavanaugh’s responses to significant issues of public concern raised by the minority Democratic Party Senator members of the Senate Judiciary Committee.

Without examining who did what and when – and there is a lot of this to consider – the fact these hearings take place in public, where members of the judiciary are rightly quizzed by democratically elected representatives in a national legislature as to their views on law, legal precedents, their past work, experience, and so on – is a bonus to transparency, public awareness of the law, the courts, and the role of the judiciary,

The Senate Judiciary confirmation hearings on Judge Brett Kavanaugh are available at the following links, for viewing:

Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 1)

Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 2)

Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 3)

Among several shorter clips of the hearings posted by C-Span, is the series of questions from Senator Kamala Harris to Judge Kavanaugh – which is well worth watching – here:

Exchange between Sen. Harris and Judge Kavanaugh on Mueller Investigation (C-SPAN)

For more on the hearings, events at the US Supreme Court, and campaigning groups calling for reform of accountability and transparency at the US Supreme Court, please visit the excellent website of FIX THE COURT.

Fix the Court is a national, non-partisan grassroots organization created to take the Supreme Court to task for its lack of accountability and transparency and to push Chief Justice John Roberts and the court’s eight associate justices to enact basic yet critical reforms to make the court more open and honest.

It educates the American people about the many problems plaguing the court and its justices and is building a movement of conservatives, independents and progressives demanding change with a common voice.

For more information on the reforms Fix the Court is pursuing, click here.

An interview with Fix the Court’s Executive Director – Gabe Roth – can be found online here: US Supreme Court: Is life tenure too long?

JUDICIAL SELECTION IN SCOTLAND – SECRECY RULES:

A world away from the United States & Senate Committees quizzing members of the judiciary, here in Scotland, as in the rest of the UK, judicial recruitment and appointments more or less come down to members of the judiciary appointing members of the legal profession, often personally known to them – to plush, well salaried, powerful positions within Scotland’s judiciary.

Judicial Appointments in Scotland – as demonstrated by the appointment of Lord Carloway (Colin Sutherland) to what became little more than a simple elevation of Carloway as Lord Justice Clerk to that of the grandiose title of Lord President and Lord Justice General – aka Scotland’s top judge – are a behind closed doors process which the public, media, elected representatives have absolutely no role to play, or right to see.

All that the public, Scottish Parliament MSPs and media were able to inspect of Carloway’s appointment, were disclosed in a Freedom of Information request, published by DOI in April 2016

SECRETLY SELECTING A PRESIDENT, SO SECRETLY:

How judges select Scotland’s judges – in secret The selection panel for the office of Lord President – of which Lady Dorrian was a member – considered five candidates for the position of Scotland’s top judge – according to papers released by the Scottish Government in response to a Freedom of Information request by the media.

While there was significant speculation during 2015 that a female judge would be appointed to the top judicial post of Lord President, the unpredicted shift away from a male only top judge did not happen this time around.

Responding to queries, the Scottish Government refused to disclose the genders & diversity information relating to any of the candidates for the top job, citing privacy concerns.

Written exchanges between civil servants and the selection panel reveal a short listing meeting was held on 1 September 2015. The panel considered that two applicants Lord Carloway  [Redacted] merited an interview on the basis of the quality of their applications.

The panel agreed that given the level of appointment, candidates needed to be able to demonstrate that they met the criteria to an exceptional degree [Redacted].

The content of the selection panel’s report recommending Lord Carloway for the nomination of Lord President, was completely censored by the Scottish Government.

Emails between Scottish Government show First Minister Nicola Sturgeon had decided on Lord Carloway’s nomination as Lord President around 18 November 2015. Lord Carloway’s appointment as Lord President was finally made public a month later in December 2015.

The disclosure, heavily redacted, and composed of twenty two short pages of meagre detail – are a far cry from public judicial nominations in the United States, handled by the Senate Committee on the Judiciary.

And, there is a reason for this – revealed by none other than Lord Carloway’s former boss – Lord Brian Gill – who was described by Lord Neuberger during a valedictory speech in London as an ‘iron fist in a velvet glove’ – just weeks before Gill’s secret divorce of his long time wife was revealed in the Scottish Sun newspaper.

During early November 2015, Lord Gill – who had stood down after a testy, tumultuous three year term as Lord President in which he battled overwhelming backing for a register of judicial interests – finally gave evidence to the Scottish Parliament, and on the subject of judicial recruitment, Brian Gill told MSPs of his complete disdain for the US Justice system, attacking the way in which judicial nominees had to face questions from those outside the judiciary’s carefully closeted world.

A full report on Gill’s ‘brass neck’ attack on how US Justices are nominated, was published in 2016 here: OPENNESS? LORD, NO: The day Scotland’s former top judge lashed out at America’s justice system, accusing US judges of financial ties to corporations & vested interests

Gill went a step further, slating the US Justice system itself in his response to MSP Angus MacDonald – in video footage available here:

Lord Brian Gill slams US judges – Top Scots judge claims US judiciary elected by vested interests

Official Record: Petitions Committee 10 November 2015

Angus MacDonald: Thank you. It was important to get that fundamental view on the record.

What is your view of the fact that the United States of America has successfully introduced a register of judicial interests? Has the system in the States increased public confidence in the judiciary?

Lord Gill: I do not know that we would want to have a judiciary here that is like the one in the United States. It depends on your personal point of view. I do not give you my view, but I am sure that you can guess what it is.

Angus MacDonald: I will not pick up on that particular point.

Has there been any evidence on the impact that the US system has had on the independence of judges or the way in which the media treats judges in the USA?

Lord Gill: I would be very sorry to see a judiciary in which candidates ran for election and in which candidates’ election campaigns were based on fundraising from companies and corporations that might be litigants in their courts. I would also be very sorry if the day ever came where, before appointment, judges had to come before a committee of this honourable legislature for confirmation and for examination of their political, ethical and social views.

The full evidence session held at the Scottish Parliament with Lord Gill on 7 November 2015 can be viewed here: Evidence of Lord Gill before the Scottish Parliament 10 November 2015 with a full report and transcript of the meeting here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests.

In between refusing to give evidence to the Scottish Parliament, Lord Brian Gill spent his time on international travel, and giving a lecture on judicial ethics while on a taxpayer funded state visit to Qatar – a country not known as a haven of transparency or human rights.

Lord Gill’s Qatar expedition funded by public cash is reported in further detail here: LORD JET SET: Scotland’s top judge Lord Gill takes 5 day STATE VISIT to Qatar as investigation reveals judiciary’s international travel junkets spree.

A year on from the confrontation between Lord Gill and the Scottish Parliament – only after two refusals to give evidence – MSPs await to hear from Scotland’s current top judge Lord Carloway – who, like his predecessor, given an equally hostile opinion on the very notion of judicial transparency and requirements of judges to declare their interests.

A recent report on Lord Carloway’s opposition to judicial transparency can be found here: Top judge Lord Carloway hits out at judicial interests register proposal.

The proposals before the Scottish Parliament received cross party backing from MSPs during a full debate at Holyrood during October 2014 – Debating the Judges – call 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.

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

 

 

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JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

MSPs support creation of Judicial Register. A SIX YEAR Scottish Parliament investigation of a petition calling for the creation of a register of interests for judges has received the backing of a powerful Holyrood Committee – who have concluded the proposal to increase judicial transparency – should become law.

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

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

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

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

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

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

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

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

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

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

When responses are received, MSPs will consider further action.

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

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

Judiciary (Register of Interests) (PE1458):

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

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

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

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

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

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

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

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

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

Members indicated agreement.

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

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

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

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

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

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

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

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

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

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

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

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

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

Dear Lord Carloway,

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

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

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

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

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

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

Register of recusals

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

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

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

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

Register of financial interests

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

These arguments have included—

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

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

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

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

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

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

Yours sincerely: Johann Lamont MSP Convener

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

Judges register backed by MSPs to become law

Martin Hannan Journalist 23 March 2018

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

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

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

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

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

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

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

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

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

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

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

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

BATTLE TO BRING IN JUDGES’ REGISTER

Sunday Mail 25 March 2018

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

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

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

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

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

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

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

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

JUDGE LIST IS BACKED

Scottish Sun 23 March 2018

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

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

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

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

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

A further report in The National newspaper:

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

Martin Hannan Journalist 22 March 2018

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

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

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

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

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

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


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

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

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

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

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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NORWAY, M’LORD: Judicial interests register of Norway cited as example to follow for Holyrood MSPs six year investigation to create a register of judges’ interests in Scotland

Norway’s judicial interests register cited as example for Scotland. A SIX YEAR Scottish Parliament investigation to create a register of judicial interests for judges of the Judiciary of Scotland – should follow the model used by an operational judicial register in Norway which has been in use for some years.

Unlike in Scotland, where judges have lobbied to remain exempt from public transparency of their interests, the Courts of Norway have operated a Register of extra-judicial activities for many years, which lists jobs, investments and other interests of members of the Norwegian judiciary.

The website of the Courts of Norway states that “The rules on registration of interests apply to all judges, including deputy judges.”

“Full-time and provisional judges are covered if appointed or employed for a period exceeding one month. ‘Interests’ cover membership, offices or other forms of commitment other than a company, organisation, association or body of the state, county or local authority.”

The Norway model has been put forward to members of the Scottish Parliament’s Public Petitions Committee – as an example of an operating register of judicial interests in a country close to Scotland which should be included in the evidence base accumulated by Holyrood over the past six years of studying how to move forward on legislation to create a register of interests for all judges in Scotland.

A register of judicial interests for Scotland would include all judges – from the Lord President, down to Justices of the Peace, and members of tribunals.

On Thursday, 22 March 2018, the Public Petitions Committee will hold the 25th hearing to discuss Petition PE1458: Register of Interests for members of Scotland’s judiciary.

A further request has been filed with the Public Petitions Committee to contact Norway’s judiciary, seeking  material and information on how their register operates, and any insight the Norwegian judiciary & Government hold on how the register has benefited their judiciary and justice system.

A late submission to the Public Petitions Committee states: “Given the six years of evidence collected by the Scottish Parliament on the merits of creating a register of judicial interests for Scotland, to have evidence from a working register of interests as part of the public debate and the Parliamentary record of this petition is a worthwhile step to take.”

“While the recusals register does not tell the full story on conflicts of interest, having up until now, carefully avoided any mention of financial conflicts of interest & disclosures relating to instances where judges have been asked to recuse but have failed to do so, the recusals register is again, another indicator that an accurate, updated and fully published register of judicial interests is beneficial to the public, court users, and public scrutiny of the judiciary.”

Readers can View here the Register of extra-judicial activities from the Courts of Norway website.

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

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

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

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

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

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

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

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

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

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

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

NORWAY: A register of judges’ interests Scotland could adopt, and improve upon:

THE COURTS OF NORWAY:

To ensure that no one is any doubt about the impartiality of a judge in a case, there is a ‘register of extra-judicial activities : View the Register of extra-judicial activities (pdf)

This lists honorary posts, investments etc. that a judge may be engaged in alongside his/her duties as a judge. The purpose of the register to ensure full openness. This page provides details of what is registered and how to search the register.

The rules on registration of interests apply to all judges, including deputy judges. Full-time and provisional judges are covered if appointed or employed for a period exceeding one month. ‘Interests’ cover membership, offices or other forms of commitment other than a company, organisation, association or body of the state, county or local authority.

What is registered?

The rules basically require all interests to be registered with the exception of:

  • Membership of political parties, religious communities, stakeholder organisations and non-profit organisations.

  • Offices and the like in non-profit organisations with fewer than 100 members.

  • One-off lectures and the like.

What should be registered:
  • Investments in individual companies exceeding NOK 200,000 at the time of investment or ownership exceeding 10% of the company. The duty to register does not cover bank accounts, unit trusts or the like. The size of investment does not have to be registered.

  • Honorary posts in associations, societies, organisations or political parties with over 100 members.

  • Membership of brother- or sisterhoods, e.g. the Freemasons or Odd Fellow.

  • Employment in private or public sector companies.

  • Participation in committees, boards or the like set up by the public sector. The same applies to private arbitration boards or the equivalent.

  • Other involvement, e.g. in education, exam censor, authorship, arbitration or other types of activity.

  • The last position held before being appointed as a judge.

An interest should be deleted from the register when more than three years have passed since it ended.

How Norway’s Judiciary works:

Background:

Independence of the Courts

The independence of the Courts of Justice protects all citizens against arbitrary decisions and abuses committed by other branches of state power, This independence is a consequence of Norway being a constitutional democracy. The Constitution sets clear limits on legislative and executive power even when decisions are carried by a majority vote.
Control of the other branches of state power

The Courts of Justice exert a control function regarding new laws and changes to existing laws that are proposed by the National Assembly. If a law is against the Constitution by, for example, violating the constitutional rights of one or many citizens, a court may set aside the law in any trial where such rights are deemed to have been violated. In a case brought before the Supreme Court where two or more judges deem that a specific law breaks the constitution the case is settled in a plenary meeting of the Supreme Court. This may result in the Supreme Court setting aside the law in question in the settlement of the case.This implies that the Supreme Court through its rulings can control or limit the legislative power of the National Assembly. This control or limitation by the Supreme Court has only occurred on very rare occasions.

In concrete cases the Courts of Justice also have the authority to check on decisions made by the government or other subordinate administrative bodies. In such cases the Courts of Justice will decide whether the administration has remained within the framework of the law, whether the resolution is based on accepted facts and correct proceedure, and that the administration’s judgement is not improper or seriously unreasonable. If such errors have occurred, an administrative pronouncement can be ruled invalid by the Courts of Justice. However, it should be noted that such a ruling can only occur in response to an actual dispute brought before a court.

How independence is guaranteed

According to our Constitution judges’ decisions in each and every case are to be independent of external influence. Judges’ verdicts cannot be instructed or influenced. The decisions of the Supreme Court cannot be rejected or altered by other authorities.

Over the last few decades the situation has changed somewhat. The influence of international courts of justice has grown, especially regarding the international conventions on human rights. Amongst others, the Court of Human Rights in Strasbourg plays an important role in the development of law and jurisdiction in Norway. When, in future, the Court of Human Rights interpretes the convention differently from the Supreme Court the Norwegian Supreme Court must act in accordance with the guidelines and rulings made in Strasbourg. So even though the Supreme Court is the ‘last instance’, the Supreme is obliged to take into consideration the decisions of the Court of Human Rights.

A verdict can only be altered by a superior court of justice after an appeal proceedure. In criminal cases the usual deadline for appeal is 14 days after the verdict is handed down. In civil cases the deadline is one month. A superior court on its own initiative cannot instruct a subordinate court on its proceedings in any one specific case. However, if one party makes an appeal or an interlocutory appeal against a verdict, the court of justice processing the appeal may rule that the subordinate court must process the case again. The subordinate court must then abide by the interpretation of the law which constitutes the basis for the superior court’s ruling.

The National Assembly (Stortinget) passes general laws which the Courts of Justice apply in all cases heard in court. The Courts of Justice are independent in their interpretation of the law. This means that the courts, headed by the Supreme Court, have a a great influence on how the letter of each law is applied in each individual case. Furthermore, there exists large areas of the law wherecourt rulings and interpretations have developed or evolved contemporary law and jurisdiction.

The Courts of Justice and all judges must be protected from external influence over rulings and verdicts. For a state to be democratic and legal the judges must be both independent and impartial with regards disputing parties and all interests represented by such parties. The parties in a case may request a judge to step down if the judge in question has any connection with the case or the individual parties which might raise doubts over the impartiality or independence of the process. Judges have a personal responsibility to ensure that they do not give grounds for disqualification in any individual case.

Although the independence of the courts is guaranteed by the Constitution, all courts are not insulated from democratic developments insociety.The National Assembly passes regulations relating to the organisation of the courts, for example: how many courts shall be provided throughout the nation, where they shall be situated, the number of presiding judges for each court and the proceedure for appointing judges. All of the latter are practical matters reflecting the ever changing developments in society. The Courts of Justice are administratively subordinate to the independant Norwegian Courts Administration (NCA).

Judges cannot be dismissed

Judges appointed according to the constitutional regulations have, like other civil servants, an especially protected employment status according to § 22 of the Constitution. They hold permanent positions and cannot be dismissed or moved against their will. They can only be dismissed following a court hearing and a verdict of guilty. Permanently appointed judges can be suspended, but such a decision can only be carried out by the King in cabinet. Civil or criminal proceedings to remove a judge must be started immediately following the King’s decision to suspend a judge. Like other civil servants permanent judges can be punished for breaking the law while carrying out their duties or for offences committed outside their workplace. However, the decision about whether to prosecute for offences relating to a judge’s duties may only be taken by the King in cabinet. Permanently appointed judges cannot be indicted for public order offences according to the regulations for all civil servants. Supreme Court judges enjoy even stronger protection and can only be removed through an impeachment process.

Judges are guaranteed protection of office to enable them to make rulings and give verdicts that may be unpopular, judges have to be free of the fear of dismissal because their decisions are not supported by the authorities or by other judges. By granting judges such a secure position, all parties appearing in court are ensured an independent and impartial ruling from the Courts of Justice.

What does it mean to be a lay judge in a norwegian court? (film)

The Courts must have the people’s confidence

The decisions of judges often have great significance for many individual citizens. It is a vital requirement in a state governed by law that all the citizens of that state respect a court’s ruling as well as the laws on which such rulings are based. The courts need the trust of the people in order to maintain their authority and legitimacy. It is the legitimacy and the authority of a court which ensures that rulings are respected. The credibility of the courts must not be weakened by the perception that courts can be influenced by any external pressure.

In order for the courts to be able perform in a free and independent manner it is necessary that they have sufficient professional and economic resources to be able to fulfil their tasks.

Both the costs and the duration of court proceedings can have a negative effect on whether an ordinary citizen will take their case to court. An efficient rather than a long drawn out processing of cases is itself a guarantee of legal protection. “Justice delayed is justice denied”. The issue of reducing the duration of case processing has received a great deal of attention in recent years in Norway. Norwegian courts are now among the most efficient in Europe in this context.

A brief history of the Norwegian courts

The Viking Age

We know that there were legislative, judicial and executive authorities as early as the 10th century. In those days the kinship group was the most important executive power; crimes and conflicts were resolved by negotiation between the kin-groups, often involving agreement on the penalty. In the course of the 11th century there developed local and regional assemblies (bygdeting and lagting), which also functioned as courts; the Norwegian word ting still means both. Their most important function was to reach solutions to various disputes and their formation was driven by population growth, bigger districts and increased collaboration between districts. King Håkon I “the Good” changed the composition of the assemblies from universal attendance to representation by delegates. The most famous regional assemblies from that period are the Gulating for Western Norway and the Frostating for the Trøndelag in the middle of the country. The Hålogaland, Eidsivating and Borgarting assemblies developed in the 12th and 13th centuries, but never achieved the same influence as Gulating and Frostating. Legislative codes from the Gulating and Frostating were rediscovered in modern times. The development of the assemblies and the discovery of the codes clearly show that the rule of law was well on the way to becoming centralised as early as the 12th century.

The most usual legislative instance at that time was customary law: that is to say, there were many rules of law, but not laid down by any public authority. Customary or common law is still in use today not only in international law, but also in national areas such as constitutional and administrative law, some parts of private law and the law of damages.

The High Middle Ages

In the course of the High Middle Ages the king acquired more power, and ultimately discharged all three roles – legislative, judicial and executive. The Church also had a role in all three areas, resulting in a constant tug-of-war for supremacy. The need for codification increased, and in 1274, under king Magnus VI “Lawmender” the old regional laws were reworked and called the National Law (Landsloven). This was meant to be authoritative for the regional courts and to some extent for the district courts.

The Law was regarded as an administrative unification of Norway, the political unification being traditionally dated to 1030. The National Law also involved amendments to the judicial and executive aspects of the legal system, such as royally appointed court presidents (lagmenn) to chair the proceedings between the parties. More higher courts (lagting) were created, and sited in towns or other centres. Crime was no longer conceived as an offence against the kin-group, but as against the King. The period saw not only the beginnings of centralisation, but also of bureaucratising and professionalisation.

The Union period

Norway was in union with Denmark, and intermittently with Sweden too, from 1390 to 1814, a period in which the Norwegian legal system saw further professionalisation. Norwegian cases began in the city or district court, proceeded to the higher courts and finally to the Overhoffretten in Oslo, from 1624 called Christiania. After Denmark created a Supreme Court in 166 1, Norwegian cases could be appealed there.

The Danes had little knowledge of Norwegian laws and legal thinking, and therefore settled cases by their own laws. The Supreme Court was subject to the king, and until 1771 all decisions made by the Supreme Court were to be reviewed by him. In 1771 this review power was abolished, except for death sentences. In the course of the Danish Union, attempts were made to increase the distinction between the judicial and executive powers, at the same time as the king maintained his position as the fount of legislation.

The National Law promulgated under Magnus “Lawmender” was still applicable law in Norway. As the 17th century progressed a need was felt to update it, leading to the Norwegian Law (Den norske lov) of 1687, which was to a certain extent based on the Danish code of 1683. The Supreme Court in Denmark could now deal with two legal codes that were more or less similar.

The separation of powers and the Norwegian Constitution

The principle of “separation of powers” – that is, between the legislative, executive and judicial functions – was formulated by the French philosopher Montesquieu. Montesquieu’s separation of powers was central to the Norwegian constitution of 1814, adopted after that year’s separation from Denmark. The King was the executive power, the Storting the legislative power and the courts the judicial power. The Norwegian constitution was more liberal than many others, inter alia being based on the principle of popular sovereignty.

Norway acquired its own Supreme Court in 1815. The Norwegian constitution remained in force after the young state entered a union with Sweden, and so the final Norwegian independence in 1905 did not represent any change in the Norwegian legal system. During the German occupation of 1940-45 the Supreme Court resigned, and judges were appointed who were loyal to the occupiers. Neither the judges nor their decisions from this period were recognised after Liberation.

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

 

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REGISTER, THE SIXTH: Holyrood probe on calls for a register of judges’ interests will enter SIXTH YEAR with 23rd Petitions Committee hearing to decide on way forward for publicly available judicial transparency register in Scotland

Holyrood probe on judicial interests enters sixth year. A FIVE YEAR Scottish Parliament investigation of Petition PE1458: Register of Interests for members of Scotland’s judiciary – will now enter an unprecedented SIXTH YEAR – after a private meeting decided to carry forward  proposals for judicial transparency into 2018.

At a meeting of Holyrood’s Public Petitions Committee on Thursday 21 December 2017, the judicial transparency petition was scheduled as the last item – to be debated in private  – as MSPs looked for a way forward on the cross party supported proposals.

However, MSPs did not conclude on a way forward at that meeting, and decided to take forward the petition into next year for further scrutiny and consideration.

The proposal – to create a register of judicial interests for members of Scotland’s judiciary, was originally filed with the Scottish Parliament in 2012.

The  latest move by Holyrood’s Public Petitions Committee to look for a way forward – comes after the petition secured powerful backing of former Cabinet Secretary Alex Neil MSP (SNP).

In an interview with The National newspaper, and a posting on Mr Neil’s Facebook page, Alex Neil said : “It is now time for the Petitions Committee itself to look at using the powers of parliamentary committees to introduce a Bill to set up a judicial register of interests.”

Alex Neil added: ““There is no doubt in my mind at all that it is long overdue. I do not see why judges should be any different from ministers or MSPs, and they should need to declare interests as most people in public service do these days.

“A Bill of this nature is badly needed, and if it can be done on an all-party basis through the Petitions Committee, then the committee’s members should not wait and should act now to sponsor a Bill.

“I am very supportive of the Petitions Committee, which I think is a very good committee, and it is now time for them to seriously consider bringing forward their own Bill on this matter, as I have no doubt that the case for such a register has been thoroughly made out.”

The latest developments – in the 22nd hearing of Petition PE1458 on calls to create a register of judges’ interests – comes after MSPs previously heard over sixty two submissions of evidence, during twenty one Committee hearings, including a private meeting between two MSPs and a top judge, and fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2017.

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

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1450 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary

Video footage of the short hearing prior to MSPs debating the judicial interests register proposals in private, follows:

Register of Judicial Interests PE 1458 Public Petitions Committee 21 December 2017

A brief report from the Public Petitions Committee on the meeting reports the decision as follows:

Consideration of a continued petition (in private): The Committee considered a draft letter on PE1458 by Peter Cherbi on Register of interests for members of Scotland’s judiciary. The Committee agreed to consider a further draft letter at a future meeting.

Journalists involved in the petition expressed their thanks to members of the Public Petitions Committee for keeping the debate open and welcomed the continued public & parliamentary debate on the judicial register – which continues to bring in key intelligence on judicial interests & cases where serious conflicts of interest have been ignored in both criminal and civil cases in Scotland’s courts.

JUDICIAL REGISTER MUST GO FORWARD:

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

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

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

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

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

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

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

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

 

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JUDICIAL REGISTER: Scottish Parliament move forward on FIVE YEAR judicial interests probe as Ex-Cabinet Secretary Alex Neil calls on MSPs to create legislation for a register of judges’ interests

Petitions Committee moves forward on judicial register. A COMMITTEE of MSPs conducting a FIVE YEAR Scottish Parliament investigation of Petition PE1458: Register of Interests for members of Scotland’s judiciary – have decided to move ahead on proposals requiring judges to declare their interests in a publicly available register.

The move by Holyrood’s Public Petitions Committee who met on Thursday 7 December to look for a way forward – comes after the petition secured powerful backing of former Cabinet Secretary Alex Neil MSP (SNP).

In an interview with The National newspaper, and a posting on Mr Neil’s Facebook page, Alex Neil said : “It is now time for the Petitions Committee itself to look at using the powers of parliamentary committees to introduce a Bill to set up a judicial register of interests.”

Alex Neil added: ““There is no doubt in my mind at all that it is long overdue. I do not see why judges should be any different from ministers or MSPs, and they should need to declare interests as most people in public service do these days.

“A Bill of this nature is badly needed, and if it can be done on an all-party basis through the Petitions Committee, then the committee’s members should not wait and should act now to sponsor a Bill.

“I am very supportive of the Petitions Committee, which I think is a very good committee, and it is now time for them to seriously consider bringing forward their own Bill on this matter, as I have no doubt that the case for such a register has been thoroughly made out.”

The Public Petitions Committee have now decided to consider the position in private at a later meeting – and formulate letters to Lord Carloway and Justice Secretary Michael Matheson which will be published in due course.

During the short hearing last Thursday, Deputy Convener Angus MacDonald MSP (SNP) who is known to support the petition, commented: “..we must move forward. We have been considering the petition for five years and Mr Cherbi’s latest submission shows a degree of frustration, which I share.”

The published decision states: PE1458 by Peter Cherbi on Register of interests for members of Scotland’s judiciary. The Committee agreed to consider a letter to the Lord President and the Cabinet Secretary for Justice in private at a future meeting.”

The latest developments in the 22nd hearing of Petition PE1458 on calls to create a register of judges’ interests comes after MSPs previously heard over sixty two submissions of evidence, during twenty one Committee hearings, including a private meeting between two MSPs and a top judge, and fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2017.

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

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1450 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary

A report on the Public Petitions Committee meeting of 7 December 2017 & video coverage follows:

Register of Judicial Interests – Petition PE 1458 Petitions Committee Scottish Parliament 7 December 2017

Judiciary (Register of Interests) (PE1458)

The Convener: The fourth and final item today is consideration of five continued petitions. The first petition for consideration under this item is PE1458, from Peter Cherbi, on a register of interests for members of Scotland’s judiciary

We last considered the petition in June, when we took evidence from Lord Carloway, the Lord President. We agreed to reflect on that evidence and we have a briefing note that summarises the issues that came up in that evidence session. We also have two submissions from the petitioner that convey his response to the evidence and provide information about additional developments in relation to the recusal of judges.

As members are aware, the petition has been under consideration for five years and we have a good understanding of the arguments for and against the introduction of a register of interests for judges. There has been some movement on that.

Do members have any comments on what we should do next?

Angus MacDonald: As you say, convener, the petition has been on-going for five years. It is worth noting that it was originally based on the consideration of the Register of Pecuniary Interests of Judges Bill in New Zealand, which was dropped after we started to take evidence on Peter Cherbi’s petition.

We have taken extensive evidence on the petition over the past five years, including from the former Lord President, Lord Gill, the current Lord President, Lord Carloway, as well as the former Judicial Complaints Reviewers Moi Ali and Gillian Thompson. We appreciate the time that they have all given to the committee.

The petition has already secured a result, to the extent that there is more transparency because judicial recusals are now published, which did not happen previously. It is worth pointing out that that still does not happen in England, Wales and Northern Ireland. We should be proud that the petition has achieved that.

However, I note that the petitioner has suggested that we take evidence from Baroness Hale, President of the UK Supreme Court, as well as from the new Judicial Complaints Reviewer. It would stretch the bounds of the petition to take evidence from Baroness Hale, as the petition urges the Scottish Government to create a register of judicial interests in Scotland. I am not sure that our remit extends to the UK Supreme Court. Mr Cherbi should perhaps take that aspect of the matter to the UK Parliament Petitions Committee, which may have the remit.

The Convener: I sense that we have agreement to the approach outlined by Angus MacDonald, which is not to take further evidence, but to bring together our conclusions and write to the Scottish Government, recognising that there has been some progress. Do we agree to draft a letter on our conclusions in private, although the final letter will be in the public domain?

Members indicated agreement.

Angus MacDonald: I agree, but we must move forward. We have been considering the petition for five years and Mr Cherbi’s latest submission shows a degree of frustration, which I share.

The Convener: We understand that, but there should also be recognition of the fact that there has been some progress.

Do members agree to send the letter to the Lord President as well as the cabinet secretary?

Members indicated agreement.

The National reported on the latest developments and support from former Cabinet Secretary Alex Neil MSP:

Call for Scottish judges to register interests gets backing from MSP

Martin Hannan Journalist 7th December 2017

A PETITION calling for judges to openly register their financial and other interests has received its biggest boost to date.

Five years to the day after it was lodged at the Scottish Parliament, former minister Alex Neil MSP will today call on Holyrood’s Petitions Committee to start the process of bringing a Bill before Parliament.

The transparency petition was lodged by legal affairs journalist and campaigner Peter Cherbi on December 7 2012, and it will be considered again today — the 22nd time it has gone in front of the Holyrood committee.

The SNP’s Alex Neil has followed the petition with interest and has actively campaigned for the judicial register of interests to be introduced.

He told The National yesterday: “It is now time for the Petitions Committee itself to look at using the powers of parliamentary committees to introduce a Bill to set up a judicial register of interests.

“There is no doubt in my mind at all that it is long overdue. I do not see why judges should be any different from ministers or MSPs, and they should need to declare interests as most people in public service do these days.

“A Bill of this nature is badly needed, and if it can be done on an all-party basis through the Petitions Committee, then the committee’s members should not wait and should act now to sponsor a Bill.

“I am very supportive of the Petitions Committee, which I think is a very good committee, and it is now time for them to seriously consider bringing forward their own Bill on this matter, as I have no doubt that the case for such a register has been thoroughly made out.”

Both Lord Carloway and Lord Gill, the current and former Lord Presidents of the Court of Session respectively — the senior judge position in Scotland — have opposed such a register of interests.

At least two High Court judges — Lord Carloway and Lady Smith — already declare their interests because they are members of the board of the Scottish Courts and Tribunal Service.

They did so for the first time last month, along with Sheriff Duncan L Murray, after a Freedom of Information request.

Welcoming Alex Neil’s intervention, Cherbi said: “For five years, the Scottish Parliament has considered a petition calling for a register of judicial interests.

“In this time, the petition has generated more than 62 submissions of evidence, 21 committee hearings, a private meeting between MSPs and a top judge, 15 speeches by MSPs during a full Holyrood debate, and two appearances by judicial investigators — who both support the petition.

“In two of those meetings, two top judges were left grasping at straws when asked why the judiciary should be above public expectations of transparency.

“This proposal to create a register of interests for judges applies the same level of transparency to the judiciary which already exists in other parts of the justice system such as the police, prosecutors and court administration and will bring judges into line with all others in public life who are required to register their interests.

“Along the way, the petition has gained wide cross-party support in the Scottish Parliament, wide support in the media, and the invaluable and fantastic support of two judicial complaints reviewers — Moi Ali, and Gillian Thompson.

“There is significant public interest in this petition going ahead into legislation, and if the Lord President is still against the idea of judges declaring their interests, our sovereign Parliament must act and set in law what the public expect — that judges register their interests.”

A further report from the National featured developments from the hearing and the decision to move ahead on the petition:

Committee nears decision on register of interests for judges five years after petition

Martin Hannan Journalist 9th December 2017

A PETITION to the Scottish Parliament calling for judges and sheriffs to publicly register their interests seems to be nearing a successful outcome – five years after it was submitted.

The Public Petitions Committee has agreed to finalise its conclusions on the list of signatories submitted in December 2012 by legal campaigner and journalist Peter Cherbi.

The Holyrood committee agreed to consider those conclusions in private at a future meeting before writing to Scotland’s senior judge, Lord Carloway, the Lord President, as well Justice Secretary Michael Matheson.

Committee convener Johann Lamont said members would be aware the petition had been under consideration for five years and they had a “good understanding” of the arguments for and against a register.

Angus MacDonald, SNP MSP for Falkirk East, called for a “move forward” and told the committee: “This petition has been ongoing for five years to this date exactly. It’s fair to say we have taken extensive evidence on this petition over the last five years, not least from the former Lord President Lord Gill and the current Lord President Lord Carloway, as well as judicial complaints reviewers Moi Ali and Gillian Thompson.

“It’s fair to say this petition has already secured a result, to the extent that there is now more transparency, with the publication of judicial recusals [judges excusing themselves from a case due to conflict of interest] which didn’t happen before, and it’s worth pointing out that this still doesn’t happen in England, Wales and Northern Ireland, so Mr Cherbi should be proud that his petition has achieved that.”

Cherbi told The National: “It has taken five years for the petition to travel through 22 committee hearings and a full debate in 2014 – during which it was evident from the 15 speeches by MSPs that cross-party support exists for the creation of a register of judicial interests.

“The case has been made for judicial disclosures – there is no rational case against it – now it is time for Holyrood to legislate to require judges to register their interests. What struck me during the public debate and contact with people was that many thought judges already declared their interests and published their recusals.

“People I talked with over the course of these five years were genuinely shocked when they found out the judiciary did neither, instead preferring to duck and dive behind oaths and guidelines the judiciary wrote and approved themselves.

“The public are entitled to expect the highest standards of transparency from all those in public life, and the judiciary are no different.

“Judges must face up to the fact that those who hold the power to take away freedoms, to change or alter the lives of others, to overturn legislation from our elected parliaments – and to do all this without any reasonable scrutiny – must now be brought up to the same, or higher, levels of transparency and accountability as the public expect of those in public life, the justice system, and government.

“Perhaps the move to open up scrutiny of a very closed shop judiciary will also lead to the opening up of judicial appointments and an increased role for the Scottish Parliament in hearing in public from those who want to become members of the judiciary.”

JUDICIAL REGISTER MUST GO FORWARD:

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

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

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

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

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

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

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

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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