JUDICIAL REGISTER: Scottish Government confirm Register of Judges’ Interests will be created – after Holyrood TEN YEAR probe of judicial interests & recusals survives lobbying by legal vested interests to close public interest transparency petition

Scottish Govt agree to create Judicial Register. A PETITION to create a register of judges’ interests for all members of Scotland’s judiciary – survived a stormy session of the Scottish Parliament’s Justice Committee – after a failed last-minute Tory led attempt to shut down the TEN YEAR judicial probe.

The attempt to close down Petition PE 1458 was led by the now former MSP Justice Committee Convener – Adam Tomkins of the Scottish Conservatives – who launched blistering criticism on questions around judges’ interests during several hard edged statements to fellow members of the Justice Committee.

However, since these events took place on 2 March at the Scottish Parliament’s Justice Committee – the Scottish Government has since indicated they will create the register of judges’ interests as asked for in the petition – Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Petition PE1458 was originally lodged at the Scottish Parliament in 2012. The Petition calls for the creation of a publicly available register of judicial interests – containing information on all 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.

Confirmation the judicial register will now move forward, was reported in the media: SNP Government moves forward with register of interest plan for judges

The Daily Record article reports: Now Keith Brown, who was appointed by Nicola Sturgeon to be the new Justice Secretary, has confirmed the Government is taking it forward.

He said: “It was a manifesto commitment of the SNP to create a register of interests for members of the judiciary to improve transparency and trust in the justice system. “Now that the new government is in place, we will start looking at ways this register can be introduced and take forward the work needed to achieve this manifesto commitment.”

The Record further reports support for the petition, from MSPs and the Scottish Government: SNP MSP Michelle Thomson said: “I support the commitment from the Scottish Government to create a register of interests for the judiciary. Members of the judiciary, like any other public servant in receipt of public funds, must disclose interests that could influence their decisions or give the perception of doing so”.

A Scottish Government spokesperson said: “Introducing a register of interests for members of the judiciary will increase transparency and trust in the justice system. The Scottish Government will now begin work to engage with stakeholders to consider how best to bring forward this justice reform.”

An additional blog report will publish more detail around the latest events relating to the petition and the creation of a register of judges’ interests – which the Scottish Government confirmed will occur.

Back to the events of March 2021 – Adam Tomkins – the now former Justice Committee Convener after having retired as an MSP at the 2021 election – was joined in the well organised effort to shut down the judicial register debate by Annabelle Ewing – who is now the current Deputy Presiding Officer of the Scottish Parliament, and MSP Rona Mackay – formerly of the Petitions Committee.

However, Justice Committee member John Finnie who has since stood down as an MSP launched a scathing rebuttal of the Tory Convener’s concerted effort to shut down debate on Scottish judges interests and demanded the petition be kept open. Mr Finnie was joined in support by MSPs Rhoda Grant (Scottish Labour), Liam Kerr (Conservative) Liam McArthur (Liberal Democrat) & Shona Robinson (SNP).

In response to Tomkins & Ewing’s praise for judges, and their expressed agreement with the Lord President to shut the petition, John Finnie said in response: “I will follow on from the convener’s comments about the separation of powers. Of course, in any liberal democracy, it is absolutely right that we have an independent justiciary. I accept that. However, we are talking about one individual the Lord President.”

“I do not know that individual and I have no axe to grind one way or another, but I will paraphrase the previous exchanges with him. He said, “No, I don’t want it.” The committee decided to write to him again, and he said, “I’ve already told you that I don’t want it, and I’m telling you again that I don’t want it.” There were discussions about his coming to give evidence and even about whether it was appropriate to ask him to come to give evidence. He said, “Well, I could come and give evidence but, as I’ve told you and I’ll tell you for a third time, I don’t want it.” To be perfectly honest, that does not seem to me like a functioning liberal democracy.”

“What is there to fear from disclosing the information that is being asked for? Examples of other jurisdictions have been given where that is done without a problem. Should we be surprised that a Government of whatever persuasion wants to be in accord with the Lord President and does not want to dissent from the Lord President’s position? Perhaps not.”

I am not persuaded by either of those arguments, but there is a more compelling reason why we must keep the petition open. I am supportive of the intention of the petition. As always, the devil will be in the detail, but the detail that has been shared with us is that we are being urged to commission the work that we had already decided on. It is very clearly unfinished work for the committee. We undertook to do things in relation to the petition; we have not done those. For that reason, we must pass it on to our successor committee to pick up on that work, and it will be for it to decide how to proceed thereafter. The petition should be kept open.”

Justice Committee members Shona Robison, Liam McArthur & Rhoda Grant also agreed to keep the petition open. 

The Scottish Conservatives Liam Kerr also agreed, to keep the petition open.

A planned motion to close the petition was apparently scrapped at this point and discussions aimed at shutting down the petition – which took place outside the realms of the Justice Committee prior to the hearing – have since been made available to journalists.

Instead – The Tory Justice Committee convener Adam Tomkins managed a final spat at the TEN YEAR probe of judges interests and plans to create a register – displaying visible concern that Justice Committee members had kept the petition open

A very animated Adam Tomkins ended the terse, at times bitter hearing on the petition by stating “I will close by saying that just because it is appropriate for elected members in the legislature to have a register of interests, that does not mean that it is appropriate for members of the judiciary to have a similar register of interests. The function of the separation of powers is to treat different branches of government differently, according to their institutional function.I hope that that is a fair summary albeit with a gloss from me at the end of the committee’s decision.”

Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Video coverage of the Justice Committee meeting of 2 March 2021 and discussions relating to the register of judicial interests petition can be viewed here:

Register of Judges Interests Petition PE 1458 Scottish Parliament Justice Committee 2 March 2021

Judiciary (Register of Interests) (PE1458) Tuesday 2 March 2021

Convener Adam Tomkins (Scottish Conservative, Glasgow): The second of the petitions before us is PE1458, which concerns a register of judicial interests. The petition, from Peter Cherbi, calls on the Scottish Parliament to urge the Scottish Government to create a register of pecuniary interests of judges bill or to amend the present legislation to require all members of the judiciary in Scotland to submit their interests and information on any hospitality received to a publicly available register of interests. I refer members to the relevant papers, which include submissions from supporters of the petition.

As with the previous petition, the committee has had PE1458 before it for a long time the petition was lodged in December 2012. The last time that the committee considered the petition, it agreed to seek further information on other potential conflicts of interest relating to key stakeholders in the Scottish judicial system and to hold a round-table session on the matter with constitutional and academic witnesses. I am afraid that the pressures of competing work have meant that we have not been able to organise a round-table event on the subject, so that remains undone.

I open the discussion to members. As with the previous petition, we need to decide whether to close the petition or to keep it open for session 6. If we take the latter course, we need to justify our decision.

Annabelle Ewing (Scottish National Party, Cowdenbeath): I am mindful of the fact that I should probably have waited for my colleagues to indicate that they wished to speak first, because that might have been more appropriate, given that I am a newish member of the committee. In any event, I have read the clerk’s note and have been peripherally aware of the petition over the course of several years.

I cite a few points. First, as far as I can see, the statement of principles of judicial ethics is a comprehensive set of requirements. The idea that there is nothing in place is a fallacy. Secondly, I note that additional safeguards have been put in place during the time that the petition has been open. I cite the register of recusals and the publication of judicial expenses and overseas travel. Thirdly, and most importantly, I was struck by the letter from the Lord President and the key point about the need for the independence of the judiciary, which is not comparable to any other profession. The independence of the judiciary of the country is a fundamental tenet of our laws and our society. I agree with the Lord President on those matters, so I do not support the continuation of the petition.

Convener Adam Tomkins (Scottish Conservative, Glasgow): Thank you, Annabelle. The Official Report will not show this, but I was nodding vigorously as you commented on the fundamental importance of the independence of the judiciary as a tenet of the separation of powers. That is the principle that should be front and centre when we consider questions such as this one.

For a register of judicial interests to be created, either the Lord President would need to set that up or Parliament would need to legislate to do so. As Annabelle Ewing has just said, the Lord President has said that he does not see the need for such a register. That is also the view of the current Scottish Government, which has said that it does not support a register.

Liam Kerr (North East Scotland) (Scottish Conservative): For complete transparency, I make the usual declaration that I am a member of the Law Society of Scotland.

I listened carefully to Annabelle Ewing and the convener, who spoke very persuasively. It is an interesting debate. I have not, as yet, heard a convincing argument against the proposal. I think that there is something in what Annabelle Ewing and the convener said, but I need to hear more. Some of the recent debates that the convener and I have been involved in give me pause for thought about the petition.

The convener prefaced his comments by saying that the committee was previously interested in obtaining more information on the issue, and that we talked about having a round-table session. I want to hear and learn more about the issue before I decide what I think about a register of interests. For that reason, I am inclined to think that we should keep the petition open with a view to me or whoever has the privilege of coming back and being on the committee looking at the issue again in the cold light of day of the new session of Parliament.

Convener Adam Tomkins (Scottish Conservative, Glasgow): Annabelle Ewing has asked me to remind members that, like Liam Kerr, she is a member of the Law Society of Scotland, although, again, like Liam Kerr, she has never been not yet, at least on the bench. Thank you, Annabelle.

Liam McArthur (Liberal Democrat, Orkney Islands): I have no such declaration to make. I agree whole-heartedly with what you said, convener, and with what Annabelle Ewing said in opening the debate. It is indisputable that steps have been taken to address at least some of the principles of the concerns that were raised in the petition.

The point where I am slightly anxious here, I refer back to Annabelle Ewing’s comments on the earlier petition about the value and benefits of consistency is that, having sisted the petition previously on the basis that the committee would hold a round-table session to solicit wider views from stakeholders, but then not having done so, it would be difficult to make an argument for closing the petition. Again, that argument seems to be for administrative neatness. We made a commitment as a committee. If, after the election, the incoming committee does not feel that it needs to be beholden to that commitment, that is a decision for it, but it would be passing strange for us to abandon, simply because of the prospect of an election, the conclusion that we reached when we considered the petition previously.

On that basis, as with the earlier petition, I am minded to suggest that we keep this one open until the next session.

Deputy Convener Rona Mackay (Scottish National Party, Strathkelvin and Bearsden): I was on the Public Petitions Committee when the petition started its journey before it came to the Justice Committee, and I am supportive of it I am on record as saying that. However, given that the Lord President and the cabinet secretary have made their views clear on it several times, at this stage, we should close it, with the knowledge that the petitioner can bring it back in the next session of Parliament if he wants to carry on with it.

I do not think that that would be inconsistent. The petition is different from the previous one, which we decided to keep open, because the circumstances are different. At this stage, my preference is to close the petition, and the petitioner can always bring it back. However, I am sympathetic to the subject.

John Finnie (Scottish Green Party, Highlands & Islands): I will follow on from the convener’s comments about the separation of powers. Of course, in any liberal democracy, it is absolutely right that we have an independent justiciary. I accept that. However, we are talking about one individual the Lord President.

I do not know that individual and I have no axe to grind one way or another, but I will paraphrase the previous exchanges with him. He said, “No, I don’t want it.” The committee decided to write to him again, and he said, “I’ve already told you that I don’t want it, and I’m telling you again that I don’t want it.” There were discussions about his coming to give evidence and even about whether it was appropriate to ask him to come to give evidence. He said, “Well, I could come and give evidence but, as I’ve told you and I’ll tell you for a third time, I don’t want it.” To be perfectly honest, that does not seem to me like a functioning liberal democracy.

What is there to fear from disclosing the information that is being asked for? Examples of other jurisdictions have been given where that is done without a problem. Should we be surprised that a Government of whatever persuasion wants to be in accord with the Lord President and does not want to dissent from the Lord President’s position? Perhaps not.

I am not persuaded by either of those arguments, but there is a more compelling reason why we must keep the petition open. I am supportive of the intention of the petition. As always, the devil will be in the detail, but the detail that has been shared with us is that we are being urged to commission the work that we had already decided on. It is very clearly unfinished work for the committee. We undertook to do things in relation to the petition; we have not done those. For that reason, we must pass it on to our successor committee to pick up on that work, and it will be for it to decide how to proceed thereafter. The petition should be kept open.

Shona Robison (Scottish National Party, Dundee City East): I do not have strong views on the petition. I have some sympathy with Annabelle Ewing’s comments about the additional safeguards, and I think that we all agree on the independence of the judiciary. However, I also have some sympathy with what John Finnie has said, in that we should be consistent if we feel that there is some unfinished business for our successor committee to take forward, even if that is just the holding of a round-table session and the gathering of further evidence, it might be in a better position to make a definitive call on whether there is more that should be done here.

I hope that we can reach a consensus. I would be content for the petition to be included in our legacy report as something for our successor committee to consider further.

Rhoda Grant (Scottish Labour, Highlands & Islands): I agree with what John Finnie said and proposed.

Convener Adam Tomkins) Scottish Conservative, Glasgow: I am grateful to colleagues for what has been a very helpful debate. My sense of the discussion is that members of the committee do not feel as strongly about this petition as they did about the previous one. Some modest and minor disagreement has been expressed about whether to keep the petition open or to close it. However, I think that the balance of opinion is in favour of keeping it open, if only because there is a sense of unfinished business. However unfinished the business is, though, I think that everybody who has expressed a view on the matter is clearly of the view that that business needs to be transacted subject to and in the light of the fundamentally important principles of the separation of powers and the independence of the judiciary.

I think that the body of opinion is that the petition should not be closed at the moment, but that our successor committee in session 6 should be invited to consider the matter, if only to hear views and perhaps to explore a little why the Lord President is opposed or why the judiciary, who are represented by the Lord President, are opposed to the creation of such a register.

I will close by saying that just because it is appropriate for elected members in the legislature to have a register of interests, that does not mean that it is appropriate for members of the judiciary to have a similar register of interests. The function of the separation of powers is to treat different branches of government differently, according to their institutional function.

I hope that that is a fair summary albeit with a gloss from me at the end of the committee’s decision.

A reference in the Justice Committee’s Annual report for 2020 to 2021 states the following: Petition PE1458 – is a petition by Peter Cherbi calling 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.

The Report states the Petition, and another will be kept open for the next session of the Scottish Parliament: At its meeting of 2 March 2021, the Committee considered these two petitions for the final time this session and agreed to keep both petitions open for a new committee to consider in session 6.

SCOTTISH PARLIAMENT JUDICIAL INTERESTS PROBE:

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

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

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

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

The Scottish Parliament’s Justice Committee has consistently supported calls for a judicial interests register over multiple hearings – where MSPs have spoken out on Scottish judges involvement in the Gulf States, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

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

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 – where evidence in relation to Scottish judges swearing dual judicial oaths and working for Human Rights abusing Gulf States dictatorships – can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

UNCONVINCING TOP  SCOTS JUDGES WHO REFUSED TO BE TRANSPARENT:

Scotland’s most recent two top judges failed to convince MSPs that a register of interests is not required for Scotland’s judiciary

Former Lord President Brian Gill, and current Lord President Lord Carloway consistently argued the existence of judicial oaths and ethics – which are both written, and approved by  judges negate any requirement for further transparency in the judiciary.

However, both the Scottish Parliament’s Public Petitions Committee – who investigated the judicial interests petition for six years, and the Justice Committee – who have considered the petition since 2018, found the judiciary’s arguments against transparency to be “unconvincing”.

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

Earlier reports of how the Justice Committee handled Petition PE1458, and evidence which emerged in relation to the Judicial Office and Court Service instructing Justices of the Peace and judges to falsely not record recusals, can be found here: INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals – Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings – would NOT be recorded in official register of judicial recusals

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

 

 

DISHONESTY, LORD: Files reveal Lord Carloway misled Holyrood Committee on involvement of judges’ relative in Court of Session claim – witness statement exposes direct role of Ewen Campbell in £6M land case heard by his father – judge & privy councillor Lord Malcolm

Lord Carloway misled MSPs on judicial probe. DOCUMENTS released to an ongoing probe of claims made by Scotland’s top judge at Holyrood – now reveal Lord Carloway deliberately misled MSPs in evidence relating to the involvement of a relative of a senior Court of Session judge in a £6million court case.

The files – in the form of a witness statement from Advocate Ewen Campbell – who is Lord Malcolm’s son –  directly contradict statements by Lord Carloway – to the Public Petitions Committee and MSP Alex Neil in a hearing on 29 June 2017.

During the evidence session – Lord Carloway faced questions from Mr Neil on the Court of Session case – where judge & Privy Councillor Lord Malcolm (real name Colin Campbell QC) – heard a land contamination case – up to EIGHT TIMES while his own son represented the defenders – Advance Construction Scotland Ltd in the same court room.

In response to questions from the MSP, Lord Carloway (real name Colin Sutherland) furiously claimed that Lord Malcolm’s son DID NOT have any “active involvement with the case whatsoever.”

However – a witness statement dated May 2013 – signed by Ewen Campbell – covering the time Campbell worked for Glasgow law firm Levy & Mcrae – contains a written admission Mr Campbell confirming he did in-fact represented the construction company, alongside lawyer Peter Black Watson – who was at the time a Sheriff and partner at the same law firm.

During the hearing, Alex Neil – MSP for Airdrie & Shotts – asked Lord Carloway: “If, in any case—without referring to a specific case—a close relative of a judge is participating in the case, rightly or wrongly, the perception is that there may be a degree of prejudice.”

Mr Neil said there were concerns the reputation of the judiciary should be protected and added: “I would argue that, certainly in at least one case recently, which we have referred to briefly, the perception is that there may have been unfairness and prejudice in the way in which the matter was conducted, particularly as the judge concerned was involved in the case not once but on a number of occasions.”

In response – a clearly flustered Lord Carloway claimed no such events had taken place.

Carloway took a strong line against the questions, and replied to the MSP stating: “I disagree entirely with your analysis of that particular case and I repeat what I said earlier. The case that you refer to did not involve the judge’s son having any active involvement with the case whatsoever.”

However – on page one of the released witness statement of Ewen Campbell – Mr Campbell confirms he did work for the defenders – Advance Construction.

Ewen Campbell states: “In September 2011 I was asked by Professor Peter Watson (witness) to assist in a new case in which we were to act for Advance Construction (Scotland) Limited (“Advance”).”

Ewen Campbell goes on to admit he worked on the case for nearly a year: “I assisted with this case until Friday 15th June 2012. At this point I ceased assisting Professor Watson as I was informed by Senior Counsel that I was a potential witness in the matter.”

The exchange between Alex Neil and Lord Carloway can be viewed here:

Alex Neil & Lord Carloway on conflict of interest case Scottish Parliament June 29 2017

The released witness statement of Ewen Campbell – the contents of which call into question the honesty of Lord Carloway’s evidence to MSPs, can be found here: Ewen Campbell – Witness Statement – Nolan v Advance Construction

Within the statement, Lord Malcolm’s son – who Carloway told MSPs had no involvement in the case – goes on at length to document numerous on-site visits he undertook at the behest of Carloway’s then judicial colleague – ex Sheriff Peter Watson, and on behalf of the client – Advance Construction (Scotland) Ltd.

In just one example, Ewen Campbell states: “At approximately 4 p.m. I left Levy and McRae’s offices and attended at Branchal Road. I was driven by Ian Butler, a colleague at Levy & McRae. On arrival at the site I observed that a number of vehicles were at the gate of the site. Mr Butler and I therefore parked our vehicle just round the comer from the entrance of the site.”

Ewen Campbell is later forced to account for allegations a Grangemouth based firm – IKM Consulting Ltd – employed by Levy and Mcrae as their ‘experts’ in the case – dumped contaminated materials at a site owned by the pursuer – Mr Nolan.

Despite Lord Carloway’s abrupt statement that Lord Malcolm’s son did not have “any active involvement with the case whatsoever” – Ewen Campbell goes on to say in his witness statement he personally talked to a legal representative of the pursuer – and talked the solicitor down from his client’s initial allegation IKM Consulting Ltd dumped contaminated material during their on-site activities for Levy and Mcrae & Advance Construction (Scotland) Ltd.

Ewen Campbell states: “I contacted [solicitor] regarding this who detailed that his clients had originally stated to him that IKM had dumped contaminated materials on the site but after further questioning reduced the allegation to having dumped soil like materials on site.”

Bizarrely, Lord Malcolm’s son adds within his statement he did not instruct IKM Consulting Ltd to dump any materials during their on-site activities under his supervision.

Campbell also admits to accepting additional instructions to work on the case in which Carloway claimed he played no active role in.

Ewen Campbell further stated: “Before I ceased assisting Professor Peter Watson in relation to this case, I was instructed on a number of occasions to prepare and send letters and emails to those acting on behalf of Mr Nolan.”

It should be noted that despite Ewen Campbell’s ‘account’ of events around the IKM Consulting incident – Advance Construction were subsequently forced to admit in the Court of Session before Lord Woolman that they had in-fact illegally dumped contaminated materials on Mr Nolan’s land.

Melanie Collins, partner of Mr Donal Nolan – who was the pursuer in Nolan v Advance – said: “I found Lord Carloway’s evidence to be entirely dishonest during his responses to out MSP Alex Neil. I was astounded by how he misled Mr Neil and the entire committee on what happened in our case and how we were treated very badly by Lord Malcolm and others.”

Last night, a legal expert who viewed the material and video footage from the Committee hearing, suggested it was difficult to see how Lord Carloway could make such a false statement to the Scottish Parliament and not expect to be asked to explain himself.

Commenting on the new evidence, the legal expert said: “I am concerned Scotland’s top judge feels secure enough in the environment of a Scottish Parliament hearing – and public expectation of transparency – to make such false and egregiously misleading claims.”

He continued: “The written evidence and records of multiple court hearings suggest Lord Carloway is entirely wrong, and is determinedly at odds with the facts of this case, in his account of events to the Public Petitions Committee and Mr Alex Neil.”

Now, Carloway’s account of events to Mr Neil and the Petitions Committee is to be submitted to the Scottish Parliament’s Justice Committee alongside a report on conflicts of interest of key stakeholders in Scotland’s justice system.

A full investigation into Ewen Campbells’s father – Lord Malcolm – and his  role in the Nolan v Advance case – including serious failures to declare conflicts of interest, is reported in further detail here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders.

The further revelations of Lord Carloway’s links to the land contamination case come after an earlier investigation revealed Lord Carloway failed to declare his own son – Alexander Colin Maclean Sutherland – also worked for the merged law firm of Addleshaw Goddard-HBJ Gateley – which was trying to evict a couple at the centre of the case raised by Mr Alex Neil during the Committee hearing in 2017.

Mr Neil was invited to attend Committee hearing to quiz Lord Carloway on what legal experts say is one of the most serious cases of judicial conflict of interest in Scotland’s courts – Nolan v Advance Construction Scotland Ltd [2014] CSOH 4 CA132/11.

In the outburst from the top judge, Lord Carloway said to Mr Neil: “The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.”

Alex Neil replied to Lord Carloway, stating: “No—we have to register what close relatives do.”

Lord Carloway – clearly rattled by questions from Alex Neil and fellow MSPs about another top judge who concealed he heard a case involving his own son – hit out at Mr Neil and members of the Public Petitions Committee in video footage which can be viewed here: Lord Carloway –  Judges should not declare relatives interests   Scottish Parliament 29 June 2017

The terse exchange – one of many in the evidence session – led to material obtained during a probe by journalists which revealed Lord Carloway’s son – Colin Alexander Maclean Sutherland – worked at the time for the merged law firm Addleshaw Goddard & HBJ Gateley – who became key players in the aftermath of Nolan v Advance Construction (Scotland) Ltd.

However – Lord Carloway did not declare this conflict of interest during the Holyrood hearing.

Instead; the top judge went on to attack other Committee members and Mr Neil – over their backing for a cross party supported petition to require judges to declare and register all their interests.

Minutes before the exchange, Carloway had even denied even receiving any communications from the couple at the centre of the case – however records show Carloway’s legal secretary – Roddy Flinn – now himself a Sheriff – sent acknowledgements to the couple on 24 May 2016.

Papers show Addleshaw Goddard & HBJ Gateley were acting on behalf of Kenneth Pattullo of insolvency practitioners Begbies Traynor – who were appointed by Advance Construction’s lawyers – Levy and Mcrae – to seize the home, land, a farm, and all assets of Ms Melanie Collins & retired National Hunt jockey Donal Nolan.

The couple took on Advance Construction (Scotland) Ltd – over a land contamination incident on their land in Wishaw.

The construction company – owned by businessman Seamus Shields was ultimately forced to admit illegal dumping of material in the Court of Session case before judge Lord Woolman.

Roderick William Dunlop QC of Axiom Advocates,  Ewen Campbell of Axiom Advocates and Peter Watson – now formerly of Glasgow based Levy & Mcrae – represented Advance Construction (Scotland) Ltd.

It should be noted Peter Watson – who ran the case for Advance Construction (Scotland) Ltd was later suspended for a record three years plus over his links to a £28M writ involving the £400M Heather Capital Hedge Fund collapse – and then resigned in 2019.

An earlier investigation of this case revealed when Lord Woolman (who heard the proof after the case was passed to him by Lord Malcolm) – stated in court papers that Mr Nolan had a case, John Campbell QC removed – without instruction – most of his client’s own case including over £4million and a claim for legal costs – after he had discussions with the current vice dean of the Faculty of Advocates – Roddy Dunlop QC.

A full report on how the couple’s legal representative in court – John Campbell QC reduced his own client’s financial claim almost to zero and without any instruction or consultation – can be found here: CASHBACK QC: Legal regulator’s files reveal senior QC reduced claim without instructions, withheld key evidence & witnesses including Cabinet Secretary from Court of Session case

A full report on Watson’s suspension from the judicial bench can be found here: CAPITAL JUDGE: As top judge suspends sheriff over £28m law firm writ alleging links to £400m Heather Capital collapse, what now for Lord Gill’s battle against a register of interests & transparency for Scotland’s judiciary

Watson’s suspension from the judicial bench lasted for over three years – a record term of suspension of a member of Scotland’s judiciary and ended with Watson’s resignation in 2019, reported in further detail here: SHERIFF WALKS: Scottish Courts confirm lawyer & part-time Sheriff Peter Watson – who was named in £28M Heather Capital writ linked to collapsed £400M hedge fund – resigned from the judiciary in 2018

The full exchange between Lord Carloway (real name Colin Sutherland) and Alex Neil MSP at the Public Petitions Committee can be viewed, with transcript, below:

Alex Neil questions to Lord Carloway Register of Judges interests Scottish Parliament 29 June 2017

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

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

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

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

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

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

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

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

Alex Neil: Have you investigated it?

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

Alex Neil: No, but have you investigated it?

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

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

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

Alex Neil: Your office—

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

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

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

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

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

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

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

The Convener: Last question, please, Mr Neil.

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

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

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

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

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

An earlier investigation revealed Lord Carloway failed to declare his son was linked to the same case: JUDGE OF CONFLICT: Top judge who attacked MSPs over judicial interests probe – failed to declare relative’s role at law firm targeting MSP’s constituents’ home & farm in £6M court case linked to Lord Malcolm conflict of interest scandal

A report being compiled for an investigation of judges’ conflicts of interest by Holyrood’s Justice Committee –  has revealed Scotland’s top judge – Lord Carloway –  concealed a critical conflict of interest while giving evidence to the Scottish Parliament on a proposal to create a register of judges’ interests.

Lord Carloway’s failure to declare his own link to a case he initially claimed to know little of – while answering questions from MSP Alex Neil – was made all the more serious after the top judge himself openly attacked Mr Neil and other members of a Holyrood committee –  for daring to suggest judges should declare their relatives interests in a planned register of judges’ interests.

The report on Lord Carloway’s testimony to Holryood’s Public Petitions Committee will reveal that Lord Carloway (real name Colin Sutherland) did NOT declare to MSPs that his own son – Alexander Colin Maclean Sutherland – also worked for the merged law firm of Addleshaw Goddard-HBJ Gateley – which was trying to evict a couple at the centre of the case raised by Mr Alex Neil during the Committee hearing in 2017.

The exchange between Lord Carloway and Alex Neil – one of many in the evidence session – led to material obtained during a probe by journalists which revealed Lord Carloway’s son – Colin Alexander Maclean Sutherland – worked at the time for the merged law firm Addleshaw Goddard & HBJ Gateley – who became key players in the aftermath of Nolan v Advance Construction (Scotland) Ltd.

However – Lord Carloway did not declare this conflict of interest during the Holyrood hearing.

Instead; the top judge went on to attack other Committee members and Mr Neil – over their backing for a cross party supported petition to require judges to declare and register all their interests.

Minutes before the exchange, Carloway had even denied even receiving any communications from the couple at the centre of the case – however records show Carloway’s legal secretary – Roddy Flinn – now himself a Sheriff – sent acknowledgements to the couple on 24 May 2016.

Papers show Addleshaw Goddard & HBJ Gateley were acting on behalf of Kenneth Pattullo of insolvancy practitioners Begbies Traynor – who were appointed by Advance Construction’s lawyers – Levy and Mcrae – to seize the home, land, a farm, and all assets of Ms Melanie Collins & retired National Hunt jockey Donal Nolan.

A recent perusal of Mr Sutherland’s online legal biography at Ampersand Advocates and the Faculty of Advocates – does not mention his time at the merged firm of Addleshaw Goddard-HBJ Gateley in his online legal career:

Alexander Colin MacLean Sutherland BIO:

Year of Call: 2018; Since calling to the Bar in June 2018, Alex has developed a general practice centred on commercial law and public law, including judicial review and planning. He has appeared in the Court of Session, sheriff court and Scottish Solicitors’ Discipline Tribunal. He has also provided Opinions on a wide range of matters, including contractual disputes, insolvency and property.

Before calling to the Bar, Alex trained with a commercial firm in Edinburgh. He completed his LLB at Glasgow University in 2014 and the Diploma in Professional Legal Practice at Edinburgh University in 2015. Before then, he studied German and English Language at Edinburgh University, during which time he spent a year studying in Vienna.

He speaks fluent French and German and is well placed to undertake work involving consideration of documents in those languages.

Selected recent cases: Community Windpower Ltd v Scottish Ministers (ongoing): Inner House, Court of Session; For the appellants. Appeal against a Reporter’s decision. With Ailsa Wilson QC.

Tasmina Ahmed-Sheikh v (1) Scottish Solicitors’ Discipline Tribunal and (2) Council of the Law Society of Scotland [2019] CSOH 104; 2020 SLT 1: Outer House, Court of Session; For the petitioner. Judicial review of the first respondent’s decision on expenses.

Saadi v Whiterock Investments Ltd: Outer House, Court of Session; For the defenders. Pursuer seeking reduction of the decree awarding his sequestration.

Ford v The Firm of W&AS Bruce [2020] SC KIR 9: Kirkcaldy Sheriff Court; For the pursuer. Action of damages against a firm of solicitors for failing to advise the pursuer to include a survivorship destination when disponing half of his property to his partner. Debate on prescription.

NCS Office Services (Scotland) Ltd v Emtelle UK Ltd: Glasgow Sheriff Court (Commercial Action); For the defenders. Proof before answer on whether one of the defenders’ employees had authority to enter into a contract with the pursuers on behalf of the defenders.

Law Society of Scotland v WM: Scottish Solicitors’ Discipline Tribunal; For the respondent. Preliminary hearing on whether the complaint should be dismissed due to excessive delay.

However, when Ampersand Advocates welcomed Alexander Sutherland to their stable in 2018 – Mr Sutherlands spell at Addleshaw Goddard did gain a mention, without reference to his father being Scotland’s top judge – here: Ampersand welcomes Alexander Sutherland

HOLYROOD SUPPORT FOR  REGISTER OF JUDGES’ INTERESTS:

Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Previous 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.

 

JUDGE OF CONFLICT: Top judge who attacked MSPs over judicial interests probe – failed to declare relative’s role at law firm targeting MSP’s constituents’ home & farm in £6M court case linked to Lord Malcolm conflict of interest scandal

Lord Carloway failed to declare link to judicial conflict case. A REPORT being compiled for an investigation of judges’ conflicts of interest by Holyrood’s Justice Committee – will reveal Scotland’s top judge – Lord Carloway –  concealed a critical conflict of interest while giving evidence to the Scottish Parliament on a proposal to create a register of judges’ interests.

Lord Carloway’s failure to declare his own link to a case he initially claimed to know little of – while answering questions from MSP Alex Neil – was made all the more serious after the top judge himself openly attacked Mr Neil and other members of a Holyrood committee –  for daring to suggest judges should declare their relatives interests in a planned register of judges’ interests.

The report on Lord Carloway’s testimony to Holryood’s Public Petitions Committee will reveal that Lord Carloway (real name Colin Sutherland) did NOT declare to MSPs that his own son – Alexander Colin Maclean Sutherland – also worked for the merged law firm of Addleshaw Goddard-HBJ Gateley – which was trying to evict a couple at the centre of the case raised by Mr Alex Neil during the Committee hearing in 2017.

Mr Neil was invited to attend Committee hearing to quiz Lord Carloway on what legal experts say is one of the most serious cases of judicial conflict of interest in Scotland’s courts – Nolan v Advance Construction Scotland Ltd [2014] CSOH 4 CA132/11.

In the outburst from the top judge, Lord Carloway said to Mr Neil: “The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.”

Alex Neil replied to Lord Carloway, stating: “No—we have to register what close relatives do.”

Lord Carloway – clearly rattled by questions from Alex Neil and fellow MSPs about another top judge who concealed he heard a case involving his own son – hit out at Mr Neil and members of the Public Petitions Committee in video footage which can be viewed here:

Lord Carloway –  Judges should not declare relatives interests   Scottish Parliament 29 June 2017

The terse exchange – one of many in the evidence session – led to material obtained during a probe by journalists which revealed Lord Carloway’s son – Colin Alexander Maclean Sutherland – worked at the time for the merged law firm Addleshaw Goddard & HBJ Gateley – who became key players in the aftermath of Nolan v Advance Construction (Scotland) Ltd.

However – Lord Carloway did not declare this conflict of interest during the Holyrood hearing.

Instead; the top judge went on to attack other Committee members and Mr Neil – over their backing for a cross party supported petition to require judges to declare and register all their interests.

Minutes before the exchange, Carloway had even denied even receiving any communications from the couple at the centre of the case – however records show Carloway’s legal secretary – Roddy Flinn – now himself a Sheriff – sent acknowledgements to the couple on 24 May 2016.

Papers show Addleshaw Goddard & HBJ Gateley were acting on behalf of Kenneth Pattullo of insolvancy practitioners Begbies Traynor – who were appointed by Advance Construction’s lawyers – Levy and Mcrae – to seize the home, land, a farm, and all assets of Ms Melanie Collins & retired National Hunt jockey Donal Nolan.

The couple took on Advance Construction (Scotland) Ltd – over a land contamination incident on their land in Wishaw.

The construction company – owned by businessman Seamus Shields was ultimately forced to admit illegal dumping of material in the Court of Session case before judge Lord Woolman.

However – the couple’s £6million damages claim – led by John Campbell QC – ended badly after a series of undeclared conflicts of interest by some of Scotland’s most senior judicial figures, instances where judges were switched from hearing to hearing, a series of refusals of legal costs claims, and denied requests to appeal in Edinburgh, and at the UK Supreme Court in London.

In a sequence of discussions and a meeting between Campbell and defenders counsel Roddy Dunlop QC which took place after Lord Woolman stated in court that Mr Nolan had a valid claim – John Campbell QC embarked on a series of unauthorised actions – and destroyed his own client’s case – by removing most of the financial claim – without consultation or obtaining permission to do so.

A recent probe established John Campbell – who agreed to act on a no-win-no-fee basis in the case – then went on to scam his client Mr Nolan for hundreds of thousands of pounds in unexpected legal fees, while also demanding thousands of pounds at a time – in cash – which the senior QC and now Edinburgh Quaich Project Charity Boss insisted on collecting in person

A full investigation of Campbell’s fee scam and the Faculty of Advocates role in concealing undeclared cash payments to Campbell is reported in further detail here: CASH ADVOCATE: £9K consultations & £75K meetings – Edinburgh Quaich Project Charity QC Boss scammed clients on no-win-no-fee deal – Faculty of Advocates files reveal extent of Advocates cash-for-fees HMRC tax dodge scam

Mr Nolan and his partner remain constituents of MSP Alex Neil – who has followed and supports their efforts to have the case re-opened, as well as an investigation into events.

Since the sequestration of Mr Nolan and his partner took place, after the conclusion of their court case, the couple have been the victim – of what some view as revenge for daring to take on a company with public contracts who illegally dumped hazardous waste on their land, where this same company was and is represented by law firms directly linked to senior figures in Scotland’s judiciary.

Mr Nolan and his partner have been evicted from their own home, lost their farm and land.

And – a deliberate, targeted fire attack on Mr Nolan’s stables at a farm in 2019 which resulted in the death of several horses –  is still under investigation by Police Scotland.

Sources believe the deliberate arson attack on the couple’s Morningside Farm which featured in news reports of the tragic discovery of burned bodies of dead horses – is linked to the couple’s sequestration and setbacks in court.

And, recently, evidence has come to light of burned out vehicles possibly connected to the incident which were photographed located at a premises linked to potential suspects.

Now, there are calls for an independent, public inquiry into events which occurred during the case, the role of Advance Construction, and events in the Court of Session including involvement of certain law firms and members of the judiciary who – according to court files – deliberately concealed conflicts of interest across multiple court hearings in the case.

The case – Nolan v Advance Construction (Scotland) Ltd has attracted significant publicity in the press and is part ongoing probe into judicial conflicts of interest – resulting in the naming of several judges who failed to declare documented conflicts of interest in the case

Holyrood’s Public Petitions Committee, and recently, the Justice Committee have received and considered evidence in relation to the actions of Lord Malcolm (Colin Campbell QC) who himself failed to declare he heard the case up to eight times while his own son – Ewen Campbell – was in the same court, representing the defenders – Advance Construction (Scotland) Ltd.

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

Minutes before Lord Carloway hit out at Alex Neil over suggestions judges declare links to their relatives interests, the top judge snapped at the MSP stating: “I am satisfied that Lord Malcolm’s actions were entirely honourable and that he acted in accordance with the code of judicial ethics.”

However, the court record does show Lord Malcolm heard the case on multiple occasions while his son was in court – and new evidence has emerged from witness statements indicating Lord Malcolm’s son had also visited the site of the land contamination incident – which contradicts claims from the top judge & judicial office that Ewen Campbell had nothing to do with the case.

The original papers from Hamilton Sheriff Court in 2011 indicate that when a Sheriff Millar transferred the case to the Court of Session to be heard by Lord Malcolm – Ewen Campbell – Lord Malcolm’s son – was also present at that same hearing on 30 September 2011, along with Gavin Walker – who is a QC at Axiom Advocates.

An ongoing investigation into the case has now revealed Levy and Mcrae, representing Advance Construction in their pursuit of Mr Nolan & his partner – then sought a hearing on 14 April 2015 – to swap the original appointment of the Accountant in Bankruptcy in the sequestration of the elderly couple – to Begbies Traynor and Mr Pattullo.

That hearing took place at Hamilton Sheriff Court before the SAME Sheriff Millar – who heard the couple’s initial claim against Advance Construction in 2011 and then transferred it to be heard by Lord Malcolm in the Court of Session.

However, records show that by the time of this hearing in 2015 – accountants KPMG had already been appointed by the Accountant in Bankruptcy to handle the sequestration of Mr Nolan and his partner Ms Collins – and it can not be easily explained away by the Accountant in Bankruptcy as to why KPMG were swapped out of the sequestration for Levy and Mcrae’s choice of Begbies Traynor and Kenneth Pattullo.

Events around Levy & Mcrae’s motivated appointment of Begbies Traynor and Mr Pattullo – are now the subject of calls for an investigation by the couple’s MSP and legal experts – after it emerged assets owned by the couple which were held by the Clydesdale Bank, were transferred without notification to an offshore vulture fund known as Promantoria Ltd.

And – information has now come to light that land and assets formerly owned by the couple which were seized by Mr Pattullo & Begbies Traynor on behalf of Advance Construction (Scotland) Ltd – are now in the ownership of several persons of interest in relation to ongoing investigations of events which have occurred around Mr Nolan and his partner as a result of the collapse of their valid Court of Session claim.

The Judicial Office for Scotland were asked for comment on the following media enquiry:

“In relation to claims made by Lord Carloway to MSP Alex Neil at yesterday’s Public Petitions Committee in relation to declaring the interests of close relatives, and Lord Carloway’s mention of a son in the legal profession, can the Judicial Office confirm if Lord Carloway’s son currently works at Addleshaw Goddard LLP which has merged with HBJ Gateley.”

“On being provided with information HBJ Gateley is a pursuer in relation to obtaining decree with a view to evicting a Ms Melanie Collins & a Mr Donal Nolan from properties in Wishaw, does the Judicial Office or Lord President wish to comment on Lord Carloway’s testimony yesterday that entering the details of close relatives work in a register is going way beyond what is being proposed in terms of a register of interests for members of Scotland’s Judiciary.”

“And, in view of the claims made in relation to above, does the Judicial Office or Lord President see this as a matter which should be made clearer to the Petitions Committee after yesterday’s mention of the case during open session and Lord Carloway’s comments?”

“Finally, does the Judicial Office or Lord President have any further comment on Lord Carloway’s evidence to the Petitions Committee, and any further comment on the Petition itself?

Baktosch Gillan, who was the Acting Head of Judicial Communications at the time, gave the following reply: “In relation to your first question, the Judicial Office does not hold that information.”

Mr Gillan added: “We have nothing further to add to the Lord President’s evidence to the committee.”

To confirm Mr Sutherland’s position at Addleshaw Goddard during the time Lord Carloway gave his evidence to Holyrood in 2017, a search of the Law Society of Scotland’s online database of solicitors was made.

Days before the query to the Judicial Office in relation to Lord Carloway’s son – the name of Alexander Sutherland appeared in the Law Society of Scotland’s online search results.

However, some time after the Judicial Office issued the statement denying they held any information on the Lord President’s son’s involvement with HBJ Gateley & Addleshaw Goddard, and a potential conflict of interest – a new search of the Law Society of Scotland’s database revealed they had removed the name of Alexander Sutherland and references to his service at Addleshaw Goddard from their online database search results – which are now published as part of this report here:

The full exchange between Carloway (real name Colin Sutherland) and Alex Neil MSP at the Public Petitions Committee can be viewed, with transcript, below:

Alex Neil questions to Lord Carloway Register of Judges interests Scottish Parliament 29 June 2017

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

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

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

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

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

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

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

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

Alex Neil: Have you investigated it?

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

Alex Neil: No, but have you investigated it?

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

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

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

Alex Neil: Your office—

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

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

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

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

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

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

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

The Convener: Last question, please, Mr Neil.

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

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

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

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

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

A recent perusal of Mr Sutherland’s online legal biography at Ampersand Advocates and the Faculty of Advocates – does not mention his time at the merged firm of Addleshaw Goddard-HBJ Gateley in his online legal career:

Alexander Colin MacLean Sutherland BIO:

Year of Call: 2018; Since calling to the Bar in June 2018, Alex has developed a general practice centred on commercial law and public law, including judicial review and planning. He has appeared in the Court of Session, sheriff court and Scottish Solicitors’ Discipline Tribunal. He has also provided Opinions on a wide range of matters, including contractual disputes, insolvency and property.

Before calling to the Bar, Alex trained with a commercial firm in Edinburgh. He completed his LLB at Glasgow University in 2014 and the Diploma in Professional Legal Practice at Edinburgh University in 2015. Before then, he studied German and English Language at Edinburgh University, during which time he spent a year studying in Vienna.

He speaks fluent French and German and is well placed to undertake work involving consideration of documents in those languages.

Selected recent cases:
Community Windpower Ltd v Scottish Ministers (ongoing):
Inner House, Court of Session;
For the appellants. Appeal against a Reporter’s decision. With Ailsa Wilson QC.

Tasmina Ahmed-Sheikh v (1) Scottish Solicitors’ Discipline Tribunal and (2) Council of the Law Society of Scotland [2019] CSOH 104; 2020 SLT 1:
Outer House, Court of Session;
For the petitioner. Judicial review of the first respondent’s decision on expenses.

Saadi v Whiterock Investments Ltd:
Outer House, Court of Session;
For the defenders. Pursuer seeking reduction of the decree awarding his sequestration.

Ford v The Firm of W&AS Bruce [2020] SC KIR 9:
Kirkcaldy Sheriff Court;
For the pursuer. Action of damages against a firm of solicitors for failing to advise the pursuer to include a survivorship destination when disponing half of his property to his partner. Debate on prescription.

NCS Office Services (Scotland) Ltd v Emtelle UK Ltd:
Glasgow Sheriff Court (Commercial Action);
For the defenders. Proof before answer on whether one of the defenders’ employees had authority to enter into a contract with the pursuers on behalf of the defenders.

Law Society of Scotland v WM:
Scottish Solicitors’ Discipline Tribunal;
For the respondent. Preliminary hearing on whether the complaint should be dismissed due to excessive delay.

However, when Ampersand Advocates welcomed Alexander Sutherland to their stable in 2018 – Mr Sutherlands spell at Addleshaw Goddard did gain a mention, without reference to his father being Scotland’s top judge – here: Ampersand welcomes Alexander Sutherland

Ampersand is delighted to welcome Alexander Sutherland to the stable who called at the Bar today.

Before calling to the Bar, Alex trained with Addleshaw Goddard LLP, formerly HBJ Gateley. During his seat in the firm’s dispute resolution department, he gained experience of a wide range of litigation in both the Court of Session and the sheriff court, including real estate and insolvency litigation. He also had seats in the real estate and corporate recovery departments.

Alex completed his LLB at Glasgow University in 2014 and the Diploma in Professional Legal Practice at Edinburgh University in 2015. Before then, he studied German and English Language at Edinburgh University, during which time he spent a year studying in Vienna.

Alex’s interests lie primarily in the fields of commercial and public law. As a devil he also gained experience of planning. His principal devilmaster was Ampersand’s Laura-Anne van der Westhuizen.

He speaks fluent French and German and is well placed to undertake work involving consideration of documents in those languages.

On Alex’s arrival, Head Clerk Alan Moffat said “I am delighted that Alex has joined us. He comes with a great reputation from his time at a top firm and has been highly praised during his time on the devils course. I am very sure he will continue to impress at the Bar and expect him to be a great addition to the stable.”

In the first part of the time-honoured two-stage admission ceremony, the Dean of Faculty, Gordon Jackson, QC, said the public office of advocate carried real privileges and corresponding responsibilities.

“You have become part of a great national institution which has played, throughout its existence, a very significant role in the legal and cultural life of this nation. As a member of Faculty you will play your own particular part in the future of that institution,” he added.

In the second part of the ceremony, before Lord Clark in the Court of Session, Alex along with 6 other new calls made the declaration of allegiance.

Lord Clark said: “It is a genuine pleasure and a privilege to welcome you as members of the Faculty of Advocates and to congratulate you on this great achievement. The Faculty has long been an important and distinguished organisation. It has commonly attracted some of the ablest minds of each generation, and it continues to thrive.

“It is truly one of the great features of our society that the general public, businesses and other organisations have at their disposal people like you – independently-minded advocates who will take on and fight their causes.

“I very much hope that you thoroughly enjoy your work at the Bar and the camaraderie of your colleagues.”

Alex is a welcome addition to the depth of counsel on offer at Ampersand.

HOLYROOD QUEST FOR A REGISTER OF JUDGES’ INTERESTS

Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Previous 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.

 

JUDGE JUDGES: Scotland’s top judge refuses to face questions from MSPs on judiciary’s EIGHT YEAR battle against register of judges’ interests – Lord Carloway says he will not attend Holyrood to “rehearse the same arguments which have not apparently found favour”

Lord Carloway refused request to face MSPs. SCOTLAND’S top judge Lord Carloway – has refused a second request from Holyrood’s powerful Justice Committee to face questions on judges’ opposition to an EIGHT YEAR petition calling for the creation of a register of judicial interests – Petition PE1458: Register of Interests for members of Scotland’s judiciary

In a letter to Margaret Mitchell MSP – Lord Carloway (real name Colin Sutherland) informed the Convener of the Justice Committee he would not attend Holyrood to “rehearse the same arguments which have not apparently found favour”.

The uncompromising – yet unconvincing letter from the top judge is a veiled reference to previous unconvincing arguments against judicial transparency put forward by both Lord Carloway and his predecessor – Lord Brian Gill – who both demanded an end to MSPs investigations of judges’ interests.

The letter from Scotland’s top judge to MSPs – dated 29 January 2020 but only published by Holyrood earlier this week – is loaded with contentions that judges can only judge judges – and ends with a previously used veiled threat to the Scottish Parliament over alleged constitutionality of elected politicians creating legislation to require judges to declare their interests.

Lord Carloway also rehearses previous arguments put forward to MSPs on sponsored studies by EU judicial quango groups – even though the UK left the European Union on 31 January 2020.

It should be noted both the Public Petitions Committee and Justice Committee have heard the same arguments put forward by the judiciary over the course of eight years, yet both Committees found judges’ arguments against transparency and judicial declarations to be unconvincing against the weight of cross party, media and public support for a judicial register.

And in November 2019, the Convener of the Justice Committee wrote to Lord Carloway informing the top judge MSPs were minded to support the petition as the judiciary had not put forward any convincing arguments against the creation of a register of judges’ interests p reported here: JUDGES MUST DECLARE: Holyrood Justice Committee back cross party supported proposal to require Scotland’s judges to declare all financial interests and other links in a publicly available register of judicial interests

The cross party backed judicial register petition calls for the creation of a publicly available register of judicial interests – containing information on all 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 Justice Committee’s note of support follows over SIX YEARS of investigations by the Scottish Parliament’s Public Petitions Committee – who also concluded a register of judges’ interests was workable and could be created – despite similar arguments put forward by Carloway’s predecessor Lord Brian Gill who warned MSPs they did not have the power to require judges to declare their interests.

The decision by the Public Petitions Committee to endorse the petition was reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

And, like Lord Carloway – Brian Gill refused two requests to face MSPs questions on the petition – only finally showing up at Holyrood in November 2015 after the top judge retired earlier that year.

The Justice Committee will consider Petition PE1458 at a meeting on Tuesday 10 March 2020.

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

I thank you for your letter of 22 November 2019 in which you indicate that the Justice Committee is inclined to support the principle behind the petition of a judicial register of interests. I have, once again, considered the matter very carefully. As I mentioned in my letter of 23 August 2019, if substantive new issues had been identified then I would have been happy to address them. However, no new issues have been identified.

Over the course of 7 years, I and my predecessor have repeatedly explained our view that a register of judicial interests is constitutionally inappropriate, unnecessary, disproportionate, unsupported by objective evidence, and incapable of achieving its stated aim. On a practical level, it would have negative effects on judicial retention and recruitment at a time when attracting quality applicants for judicial office is, as I suspect you are already aware, extremely challenging. It would be cumbersome to operate. It would provide additional means for disgruntled litigants to target judges and their families. Elected office and judicial office are not comparable. The checks and balances applicable to each are different by conscious design. Judges and sheriffs are fully accountable for each and every decision which they take. Those decisions are taken in open forum and subject to appeal. At each stage the actions of the court are governed by clear and transparent legal rules. The nature of political decision-making is very different from that of legal decision-making. That is why the checks and balances are correspondingly different.

The Committee will be familiar with the Council of Europe Group of States Against Corruption (GRECO). The Committee undertakes regular independent investigations into anti-corruption mechanisms in member states. It concluded (at para 133), once again, in its Fourth Evaluation Round Report about our judiciary that there is no “element of corruption in relation to judges, nor is there evidence of judicial decisions being influenced in an inappropriate manner… What was said in the First Evaluation Round Report with respect to the absence of a system for formal registration of interests of judges is still valid. GRECO did not recommend the introduction of an asset declaration system at that time and the GET found no change of circumstance that require such a recommendation at this time”. GRECO is an important independent source of evidence on how our legal system functions. In the absence of any objective suggestions of corrupt practices, and by that I mean from those without axes to grind, I would suggest that no additional controls, beyond those already in place, are desirable.

The Committee appears already to have reached at least a preliminary view on the matter. There would seem to be little value in wasting the Committee’s time with a third Parliamentary appearance only to rehearse the same arguments which have not apparently found favour.

I have mentioned previously that the question of whether to have a register of interests for the judiciary is not something that can be considered in isolation. It forms part of a larger equation which bears on judicial recruitment, retention, reward, quality, independence and effectiveness. As part of ensuring that this equation continues to balance, the Committee may be interested to know that a judicial working group of the Judicial Council, comprising members drawn from each of the judicial ranks, has been working for some months on a project to refresh the Statement of Principles of Judicial Ethics. The Statement is a cornerstone in supporting judicial independence, impartiality and integrity. It builds on tire UN Bangalore Principles.

At its most recent meetings, the group has focussed on the extent to which judges may undertake extra judicial activities. In due course, the Judicial Council will be considering whether or not, among a range of other measures, a system of permissions for commercial activity has a place in any adjusted code of ethics. Regardless of the decisions which the group may eventually reach, the Committee can have confidence that they will have been arrived at after deep consideration of the likely effects of any change across the whole judicial system. That is the most effective means by which such questions can be explored and resolved.

I remain of the view that, from the constitutional perspective, the extent of any monitoring of judicial conduct, including judges’ interests relative to the performance of their duties, should remain a matter for the Judiciary and not for Government or Parliament. I note that almost every country in Europe and the Commonwealth agrees with this analysis.

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

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

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

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

EIGHT YEAR JUDICIAL INTERESTS PROBE:

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

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

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

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

The Scottish Parliament’s Justice Committee has consistently supported calls for a judicial interests register over multiple hearings – where MSPs have spoken out on Scottish judges involvement in the Gulf States, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

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

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 – where evidence in relation to Scottish judges swearing dual judicial oaths and working for Human Rights abusing Gulf States dictatorships – can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL TRANSPARENCY PROBE:

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

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

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

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

 

 

POLICE UNION SECRETS: Transparency petition by whistle-blower ex Police Officer closed by msps as Scottish Government block move to bring Freedom of Information compliance to Scottish Police Federation

Scots Police Fed. keeps secrets. A PETITION calling for Holyrood to recommend Freedom of Information compliance for the Scottish Police Federation (SPF) – has been closed – after the Scottish Government said it would block transparency compliance for the Union which covers all Police Scotland officers.

Petition PE1763 Freedom of Information Legislation (Scottish Police Federation) – submitted by whistleblower & ex-Police Officer Robert Brown – sought to bring the Scottish Police Federation into line with its counterpart – the Police Federation of England & Wales – which has been covered by Freedom of Information legislation since 2017

Legislation in England & Wales states: Freedom of Information Act etc: Police Federation for England and Wales: The Police Federation for England and Wales is to be treated for the purposes of— (a)10the Freedom of Information Act 2000,(b)the Data Protection Act 1998, and (c)section 18 of the Inquiries Act 2005, as if it were a body listed in Part 5 of Schedule 1 to the 2000 Act (public authorities).

The Police Federation of England & Wales FOI website section states the following: “The Police Federation of England and Wales (PFEW) is funded in part by police officers who pay subscriptions from their wages. We are not funded by the public, and we are the only staff association to be subject to Freedom of Information (FoI), which came into effect for the PFEW in April 2017. The Freedom of Information Act (2000) provides public access to relevant information held by public authorities. Should you wish to submit an FoI request, please contact us.”

Given the Police Federation of England & Wales obvious compliance with Freedom of Information legislation, Police Officers in Scotland and others with an interest in policing – an intense area of public interest – would benefit considerably to access to information – from the same level of transparency applied to the Scottish Police Federation – via compliance with the Freedom of Information (Scotland) Act 2002.

Commenting on the petition submitted by ex Police Officer Robert Brown to the Scottish Parliament’s Public Petitions Committee – Brian Whittle MSP said “The petition has real merit, especially given that England and Wales have already gone down the same route”

Howeverm a short debate then took place – with the Convener Johann Lamont & Deputy Convener Gail Ross of the Public Petitions Committee backing away from taking the matter further.

The petition to bring equality of transparency for the Scottish Police Federation was then abruptly closed – after Committee members were told the Scottish Government will not bring Freedom of Information accountability to the Scottish Police Federation.

Last year – the powerful and secretive Scottish Police Federation – which acts as a lobbying force for police officers in Scotland and has the power to decide or deny help to Police Officers – saw it’s General Secretary – Police Constable Calum A Steele – found guilty by PoliceScotland in relation to a complaint of online social media abuse against a former senior Police Officer – ‘Inappropriate and offensive’ Police union boss guilty of abusing female former chief in Twitter tirade.

The issue arose from comments made by Calumn Steele in response to criticisms about the appointment of a Chief Constable – Iain Livingstone – who had previously been accused of five allegations of serious sexual assault against a female Police Officer – reported in further detail here: TOP COP SECRETS: Transparency lacking at Police Scotland as spy scandal cops refuse to disclose files on complaints & historical sexual assault case details involving Deputy Chief Constable Iain Livingstone

An earlier probe by Diary of Justice also revealed the Scottish Police Federation received millions of pounds of public cash over the years from the SNP Scottish Government – a full report can be viewed here: PROBE THE FED: Calls for Holyrood to probe secretive Scottish Police Federation as files reveal SPF General Secretary asked Scottish Government to withdraw £374K public cash grant funding – after social media transparency calls from cops

And, days after the Scottish Information Commissioner made an online statement via Twitter that it would recommend the Scottish Police Federation for Freedom of Information compliance – SPF General Secretary Calum Steele asked the Scottish Government to end the £374,000 public cash grant paid each year by Scottish Ministers to the Scottish Police Federation.

A full report on how Daren Fitzhenry – the Scottish Information Commissioner – backed away from promises to recommend FOI compliance for Scottish Police Federation, and evidence submitted by DOJ journalists to the Public Audit and Post Legislative Scrutiny Committee of the Scottish Parliament, is covered in further detail here: FOI PROBE: Holyrood Committee hear Scottish Information Commissioner backed off promise to bring Freedom of Information to Scottish Police Federation – even after Info. Tsar knew England & Wales Police Fed. already complied with FOI legislation

As thngs stand at the date of publication – the Scottish Police Federation remain exempt from Freedom of Information legislation – despite the same transparency laws applying to the Police Federation of England & Wales.

Video footage and a transcript report of the Petitions Committee debate on bringing Freedom of Information compliance to the Scottish Police Federation follows:

Scottish Police Federation Freedom of Information petition – Public Petitions Committee 5 Dec 2019

Freedom of Information Legislation (Scottish Police Federation) (PE1763)

The Convener (Johann Lamont, Scottish Labour): The next new petition is PE1763, headed “Make the Scottish Police Federation comply with FOI legislation” and lodged by Robert Brown. The petition calls on the Scottish Parliament to urge the Scottish Government to make the Scottish Police Federation comply with the Freedom of Information (Scotland) Act 2002.

Our briefing explains that freedom of information requirements apply broadly to public authorities such as Governments, councils and health boards. Police Scotland is subject to the requirements of the 2002 act, but the Scottish Police Federation is not. As police officers are prohibited from joining trade unions, the Scottish Police Federation was created as a staff association with responsibility for the welfare and efficiency of police officers. Trade unions are not covered by freedom of information legislation.

It could be argued that the Scottish Police Federation is akin to a trade union and, therefore, should not be covered by freedom of information requirements. However, the Scottish Police Federation was established by legislation; therefore, it could be argued that it has some similarities with public bodies. The Police Federation of England and Wales is required to comply with freedom of information legislation as a result of changes to the law that were made in 2017. The Scottish Government stated in July 2019 that it had no plans to make the Scottish Police Federation subject to freedom of information legislation.

Elaine Smith, who has noted her support for the petition, says:“I have realised that the Scottish Police Federation appear to be totally self-governing and do not conform to the standards set for England and Wales Federations”.

Do members have any comments or suggestions for action?

Brian Whittle (Scottish Conservative & Unionist):The petition has real merit, especially given that England and Wales have already gone down the same route. However, the Scottish Government has indicated that it has no intention of changing its position. Frustrating as it may be to both the petitioner and the committee with regard to investigating the issue, I do not know that there is anything in particular that we can do to push the matter forward, given that we know where the Scottish Government stands.

The Convener: I do not think that trade unions should fall within the remit of, or be caught by, freedom of information legislation. The police are not allowed to have a trade union, and the only way that they can have a staff association is through legislation. Would it be fair if what is, in effect, a trade union for the police fell under different legislation from that which applies to other trade unions?

The SPF is a unique organisation. However, given that I perceive the organisation as a trade union, I do not see why—unless I am arguing that all trade unions should be in the same position—it should be singled out. The police do not have any choice—they are not allowed, under different legislation, to set up a trade union.

Brian Whittle: The whole matter is really interesting following incidents down south, such as the plebgate scenario, that have brought the police there under the auspices of FOI legislation. Again, I go back to the fact that the Scottish Government has been quite firm in saying that it has no intention of moving down that route. I am, therefore, not quite sure what we can do with the petition.

Maurice Corry (Scottish Conservative & Unionist): It is a difficult one. The release of any information under FOI is entirely in the jurisdiction of the body that is being requested to release it, and there may be valid reasons why it cannot be released. There is some sort of parity. Perhaps we should go back and question the Scottish Government, just to double-check that it is still of the same view.

The Convener: The matter was not in the programme for government.

The Government said what it said in July 2019, so we know what the answer is going to be. We would only be deferring our decision on whether we want to explore the matter further. My feeling is that the case has not been made for why the SPF, as a quasi-trade union, should fall within the remit of FOI legislation, unless we are arguing that all trade unions should be subject to FOI—I would argue that they should not be. Why would we be inconsistent? There are particular circumstances that have led to the current position in England and Wales, but my sense is that there is not an issue in Scotland.

Gail Ross (Deputy Convener) (Scottish National Party): I agree. The Government has made it quite clear what its policy is, and that is not going to change. I agree with Brian Whittle—as a committee, we cannot really take the petition forward.

Maurice Corry: I have not said that I disagree with that; I just wanted to play the devil’s advocate, because the petition raises an issue that needs to be given serious thought. I understand the reasons why the SPF was set up.

The Convener: The petition highlights the difference between the circumstances in England and Wales and those in Scotland, and it gives us an opportunity to reflect on the situation. However, my sense is that there is no pressure for such a change in Scotland. It would require broader discussion about how a staff association inside the police should operate if it is not to operate like a trade union, and I do not think the case has been made for such a change.

My sense is that the committee agrees that we should close the petition under rule 15.7 of the standing orders, on the basis that the Scottish Government has confirmed very recently that it has no plans to make the Scottish Police Federation subject to freedom of information legislation.

Do members agree? Members indicated agreement.

Petition documents submitted by the petitioner, ex Police Officer Robert Brown – stated:

Elaine Smith MSP has made many representations on my behalf including writing to the various First Ministers, Justice Ministers, Lord Advocates, Police Complaints Commission, Strathclyde Police Authority, Police Investigation Review Commission, Strathclyde Police Federation and the Scottish Police Federation. Mrs Smith also lodged a number of parliamentary questions on my behalf including seeking clarification on the issue in July 2019 from the Cabinet Secretary for Justice and from the Scottish Parliament Information centre.

The Scottish Police Federation (SPF) is currently not required to comply with The Freedom of Information (Scotland) Act 2002, whereas the Police Federation of England and Wales is required to comply with the Freedom of Information Act 2000.

All UK police forces, except Police Scotland are also required to comply with the Act. In my opinion, the foregoing is an anomaly, given the situation in England and Wales and I would suggest that making the SPF compliant with The Freedom of Information (Scotland) Act 2002 would assist every member of the SPF, every one of the 17,000 police officers in Scotland as well as members of the public who come into contact with the police and who are interested in openness and transparency.

The SPF hold large amounts of information about police officers including financial and medical information, as well as details about criminal and misconduct allegations made against officers. As a result of their position in representing police officers who are subject to investigation, the SPF receive and retain information about members of the public

Neither SPF members, police officers, nor members of the public are able to access this information. The SPF also hold large amounts of information about police officers’
pay, pensions, welfare and how SPF subscriptions are spent and used among other matters which can be accessed by other Federation members, police officers and members of the public, elsewhere in the UK, but not in Scotland.

The current anomaly in my opinion is a bar to any SPF member, police officer, member of the public or other interested party to gain access to information which is readily available to interested parties in other parts of the UK. If Scotland prides itself on openness and transparency then a body which represents many people and holds information on many more should not be allowed to be excluded from this legislation when equivalent bodies in other parts of the UK are not excluded from the equivalent legislation, i.e. The Freedom of Information Act 2000. The Freedom of Information Act 2000 is specific to England and Wales and is therefore not applicable in Scotland. In my opinion, common sense dictates that the same standard should apply across the UK and accordingly this petition is calling for the SPF to be required to comply with the equivalent legislation in Scotland.

A question from Elaine Smith MSP on Freedom of Information compliance for the Scottish Police Federation – was answered by Humza Yousaf – the current Justrice Secretary – on 17 July 2019.

Elaine Smith (Central Scotland) (Scottish Labour): To ask the Scottish Government what its position is on making the Scottish Police Federation compliant with data protection and freedom of information legislation, in line with the Police Federation of England and Wales.

(S5W-24011)

Humza Yousaf: The Freedom of Information (FoI) acts provide for access to information held by public authorities and Trade Unions and Staff Associations are not generally covered by these acts.

The decision to add the Police Federation of England and Wales to FoI legislation was made by the Home Office and there are currently no plans to add the Scottish Police Federation to the Scottish FoI legislation.

Data Protection legislation does apply to the Scottish Police Federation and a link is attached below to their Privacy Statement, which explains how they processes personal data:

A briefing from the Scottish Parliament Information Centre (SPICe) – prepared for the Public Petitions Committee consideration of Petition 1763 – stated:

Background: Freedom of information

Freedom of information legislation allows individuals to request information held by public authorities. Freedom of information is devolved to the Scottish Parliament, so the legislative framework is slightly different between Scotland and England and Wales.

Broadly, freedom of information requirements apply to public authorities, such as governments, councils and health boards. They don’t generally apply to private bodies, although some private bodies carrying out public functions are covered (in relation to their public functions, rather than their wider work).

Police Scotland is subject to the requirements of the Freedom of Information (Scotland) Act 2002.

The Scottish Police Federation is not. The Scottish Police Federation Police officers are prohibited from joining trade unions.

The Scottish Police Federation was created by the Police Act 1 919 as a staff association with responsibility for the welfare and efficiency of police officers.

Trade unions are not covered by freedom of information legislation. They are seen as private bodies representing the interests of members. It could be argued that the Scottish Police Federation is akin to a trade union and therefore should not be covered by freedom of information requirements.

However, the Scottish Police Federation was established by legislation and could be argued to have some similarities with public bodies.

The Police Federation in England and Wales

The Police Federation in England and Wales is required to comply with freedom of information legislation, as a result of changes to the law in 20171.

The then Home Secretary Theresa May argued that this change was necessary to improve transparency and accountability2.

It formed part of a wider reform initiative covering the Police Federation, which had been hit by several scandals. These included the so-called “plebgate” incident, involving allegations that the then UK Government Chief Whip, Andrew Mitchell MP, had called police officers “plebs”.

Data protection legislation

Separately, data protection legislation controls how personal data (covering any information from which a living individual can be identified) can be used.

Individuals have rights to access information that organisations (including private bodies) hold about them personally under data protection legislation. Data protection is reserved to the UK Parliament (and is, at present, mainly controlled at a European Union level).

Freedom of information legislation cannot be used to require the release of information which would identify a living individual, unless this would also be possible under data protection legislation.

This would include information which would identify a police officer (including a police officer who was subject to a complaint) or a member of the public.

Data protection legislation will usually mean that the consent of the person affected would be required before their data can be released.

However, it is possible to release personal data to a third party without consent where it is “reasonable” to do so.

Consideration must be given to the circumstances of the case, including the type of information which would be disclosed. It is also possible for organisations to redact (block out) information which could lead to the identification of a living individual when responding to freedom of information requests.

Scottish Government Action

The Scottish Government has stated, in response to a parliamentary question from July 20193, that it has no plans to make the Scottish Police Federation subject to freedom of information legislation.

Scotland keeps it secrets, meahwhile England & Wales Police Federation is covered by Freedom of Information law:

Access to information Freedom of Information

The Police Federation of England and Wales (PFEW) is funded in part by police officers who pay subscriptions from their wages. We are not funded by the public, and we are the only staff association to be subject to Freedom of Information (FoI), which came into effect for the PFEW in April 2017. Much of the information you may ask for may already be on this website, so please take the time to search for what you need first.

How to ask for information: The Freedom of Information Act (2000) provides public access to relevant information held by public authorities. Should you wish to submit an FoI request, please contact us at foi@polfed.org

The General Data Protection Regulations and the UK Data Protection Act (2018) Subject Access provides a right for the requester to see their own personal data, rather than a right to see copies of documents that contain their personal data. If you wish to submit a SAR, please contact us at dataprotection@polfed.org.

For either of the above, we will have a better chance of finding the information you want if you are as specific as you are able to be and provide us as much detail as possible.

How long will it take to receive the information I want?: This will depend upon nature of the information you have asked for. If you have requested personal information about yourself then we should respond to your request within 1 calendar month from the point at which your request and identity has been verified.

For other requests you have a right to receive the information, or receive a valid refusal, within 20 working days, unless we need clarification.

Do you have an issue or case with the Scottish Police Federation (SPF) or any other information relevant to the SPF you wish to discuss? If so, please contact Diary of Justice with further details via scottishlawreporters@gmail.com.