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DECLARE YOUR JUSTICE: Judicial Office consults with Lord Carloway on including Justices of the Peace in Register of Judicial Recusals – as questions surface over Lord Gill’s omission of 500 JPs from judicial transparency probe

Calls to include Justices of the Peace in Recusals Register. SCOTLAND’S top judge has been called upon to include nearly five hundred members of the Judiciary of Scotland in a Register of Judicial Recusals which was created in response to a five year Scottish Parliament probe on lack of transparency within the judiciary.

The Lord President – Lord Carloway (real name Colin Sutherland) – is currently being consulted by the Head of Strategy and Governance of the Judicial Office on collecting recusal data from Justices of the Peace courts.

The move comes after journalists queried why JPs were not included in the current register of recusals listing when judges stand down from a case due to conflicts of interest.

The addition of Justices of the Peace to the recusals register follows recent development where Lord Carloway conceded to calls for full transparency on judicial recusals, reported here: RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

However, amid an ongoing probe on Justices of the Peace – where it has now been established some JPs have undeclared criminal convictions – there has been no explanation provided by the Judicial Office as to why some five hundred Justices of the Peace who comprise the bulk of membership of the Judiciary of Scotland – were left out of the publication of recusals by Lord Gill during the register’s creation in April 2014.

Moves by Scotland’s judiciary to become more transparent and open up the workings of Scotland’s courts and judiciary to the public, have come in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

The creation of such a register would ensure full transparency for the most powerful people in the justice system – the judiciary.

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

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

A full listing of evidence in support of the petition calling for a register of judicial interests can be found here: JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests – points to increased public awareness of judiciary, expectation of transparency in court.

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

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

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

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

Both of Scotland’s recent top judges – former Lord President Lord Brian Gill, and current Lord President Lord Carloway, have testified before the Scottish Parliament on the petition, both failing to prove any case against creating a register of judicial interests.

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

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

The National newspaper reports on the call to include Justices of the Peace in the Judiciary of Scotland Register of Judicial Recusals.

Campaigner calls on Scotland’s top judge to extend register of recusals

Exclusive by Martin Hannan Journalist The National 3rd October 2017

SCOTLAND’S Justices of the Peace should have to register their recusals when they step aside from cases in their courts due to conflicts of interests, according to the man who is leading a campaign on judges’ interests.

The judicial register of recusals was established by Scotland’s most senior judge in April 2014, former Lord President Lord Gill, and the judiciary website shows all such recusals by judges and sheriffs and the reasons why they stepped away from a case.

Now legal campaigner Peter Cherbi has called for the register to be extended to Justices of the Peace, who are lay magistrates dealing with less serious cases such as breach of the peace or minor driving offences.

For five years Cherbi has been petitioning the Scottish Parliament on the issue of judges’ interests, and he sees a register of recusals as vital for public confidence in all the judiciary.

Cherbi said: “Given there are nearly 500 Justices of the Peace in Scotland who must act in accordance with the same rules laid down for other members of the judiciary, JPs should now be included in the Register of Recusals.

“I am surprised Lord Gill omitted Justices of the Peace when he created the Register of Recusals in April 2014. This was a significant omission, given the numbers of JPs across Scotland, and Lord Gill should have corrected this flaw before he left office in May 2015.

“I note Lord Carloway (left) has not attended to this glaring omission since taking office as Lord President in January 2016 until now being asked to do so.

“The omission of Justices of the Peace from the Register of Recusals has left out a significant portion of the judiciary and therefore concealed a more truer representation of numbers of recusals and interests across Scotland’s judges and courts, which are of significant public interest.

“I shall be informing the Public Petitions Committee of this development and if the need should arise, I will request MSPs write to the Judicial Office and Scottish Justices Association to make enquiries as to when JPs will be added to the Register of Recusals, and to seek an explanation why they were originally left out from the data, despite it being a relatively simple operation to include JPs in the recusals statistics.”

The National contacted the Scottish Justices Association, which represents the Justices of the Peace, but no reply had been received by the time we went to press.

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

 

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LEGAL REGULATION PROBE: Holyrood’s Public Petitions Committee seek views on replacing Scotland’s ‘lawyer-lawyer’ regulation – with ‘UK style’ fully independent regulation of solicitors & legal services

MSPs seek views on reform of legal regulation. TEN YEARS after the contentious passage of the Legal Profession & Legal Aid (Scotland) Act 2007 – which saw the creation of the Scottish Legal Complaints Commission (SLCC) as the lawyer-lawyer led regulator of legal services – MSPs are to seek views on creating a fully independent non-lawyer regulator of Scots legal services.

Two petitions calling for a complete reform of legal services regulation in Scotland have been debated by members of the Scottish Parliament’s Public Petitions Committee.

MSPs have now decided to call for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

The move by MSPs comes after the Scottish Government announced a ‘review’ of legal services regulation in Scotland, back in April 2017.

However, the Scottish Government ‘review’ – will not report back until the end of 2018 and with non binding recommendations – and has come in for significant criticism after it was found there was only one consumer related interest among the legal related membership.

When the review was announced earlier this year, former Cabinet Minister & SNP MSP Alex Neil said the review remit should also include judges.

Alex Neil said: I hope it produces radical and robust proposals. I also hope it covers the judiciary as well as lawyers.”

Mr Neil also called for greater fairness in the panel’s membership, to include members from outside the legal establishment.

Mr Neil added: I hope the membership of this review panel will be expanded to get a better balance between lawyers and non-lawyers”

A full report on the Scottish Government’s review of legal services can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

After members discussed the two petitions, the Petitions Committee agreed to join these petitions together for future consideration on the basis that they raise similar issues.

The Committee also agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors’ Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

Regulation of legal profession reform – Public Petitions Committee 21 September 2017

Legal Profession (Regulation) (PE1660 & PE1661)

The Convener: The next two new petitions are PE1660 by Bill Tait and PE1661 by Melanie Collins, both of which raise similar issues in relation to the current system for complaints about legal services in Scotland. Members have a copy of the petitions and the respective SPICe briefings.

PE1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission to make the process of legal complaints more transparent and independent. PE1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, the Legal Ombudsman, the Bar Standards Board and the Solicitors Disciplinary Tribunal, all of which serve consumers and clients of legal service providers in England and Wales.

Do members have any comments or suggestions for action on the petition?

Michelle Ballantyne: First of all, I note that there is a review under way. However, although it was launched in April, it is not due to report until the end of next year, which seems an awfully long time.

I am concerned about a turkeys voting for Christmas arrangement with regard to oversight of this matter. There needs to be some clear water between lawyers and those who review them, and this feels a bit close for comfort. We should check where the review is going and what it is looking at, because if it has been launched, the question is whether we need to be doing something parallel alongside it.

Angus MacDonald: Both petitions are extremely timely. Bill Tait and Melanie Collins have highlighted serious issues with regard to the legal profession and the way in which the SLCC operates in respect of complaints. I agree with Melanie Collins that there is a strong argument in favour of creating a new independent regulator of legal services, and I agree with Bill Tait’s call to make the process of legal complaints more transparent and independent.

In recent years, we have seen a degree of conflict between the SLCC and the Law Society of Scotland over the operation of the complaints system. I am sure that I was not the only MSP to receive representations from the Law Society earlier this year, stating frustration and disappointment at the increase in the SLCC levy to be paid by solicitors. It also stated that the complaints system was slow, complex, cumbersome and expensive. There is no doubt in my mind that this is the right time to look at this issue.

As Michelle Ballantyne has mentioned, the Scottish Government has acknowledged that the current process for people wishing to make complaints about their solicitor is too slow and complex, so I was certainly pleased to see the Scottish Government launch its independent review of the regulation. However, I take on board Michelle Ballantyne’s point about the review not being due to report back until the end of 2018; the period seems quite lengthy, but clearly, we can contact the Government for clarification. Given the similarity of the two petitions, there is a strong argument for joining them together to help move them forward.

The Convener: First of all, does the committee agree to join the petitions together? It seems to me that they deal with the same issues.

Members indicated agreement.

Brian Whittle: Am I correct in thinking that the Law Society called for a change and was rebuffed?

Angus MacDonald: I am not entirely sure—it certainly was not happy.

Rona Mackay: It was about the levy. It was not happy with some of the SLCC’s operation, but, as far as I am aware, it has not formally called for a change.

Brian Whittle: I thought that it was investigating this very point and was rebuffed. I might be wrong.

The Convener: It would be worth getting it clear in our own heads where all of this stands. We can obviously ask for that information.

The suggestion is that we write to the Scottish Government about the review’s timescale and remit, and I think that we should write to the relevant stakeholder bodies to ask about what issues they have. It does not feel that long since the legislation was passed, so it would be a natural time to look at and reflect on whether it has been effective and what the alternatives might be. My sense is that, when the legislation went through Parliament, we wrestled with the options—it did not go through without debate. Perhaps we should look at whether this is a bedding-in issue or an actual structural problem and whether, as the petitioner suggests, the issue needs to be revisited and a different kind of regulatory body put in place.

I think that we have agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland and the Faculty of Advocates. Citizens Advice Scotland was mentioned, as was the Scottish Solicitors Discipline Tribunal. Are there any others?

Angus MacDonald: Would it be worth contacting the Judicial Complaints Reviewer? Although it deals with judicial complaints, as per the title, it would be good to get its view, if it has one. Of course, it is not compelled to reply.

The Convener: Do we agree to deal with both petitions in that way?

Members indicated agreement.

HOLYROOD BRIEFING: MSPs hear of differences between Scotland & UK on regulation of legal services:

Background (taken from the SPICe briefing)

Scotland – complaints against lawyers

4. The SLCC was set up by the Legal Profession and Legal Aid (Scotland) Act 2007 (the Act) to deal with complaints against legal practitioners (primarily solicitors or advocates) in Scotland.

5. It is an independent body whose Board is appointed by the Scottish Ministers in consultation with the Lord President of the Court of Session. It is supported by a management team and staff who carry out investigations.

6. The SLCC is funded by a levy paid by legal practitioners and is required to consult with the relevant professional bodies when setting its annual budget. A copy of the finalised budget has to be laid before the Scottish Parliament no later than 30 April in each year (the budget is not, however, subject to parliamentary approval).

7. The SLCC acts as the initial gateway for complaints. Unresolved complaints have to be made to it in the first instance. Complaints made directly to a professional body (e.g. the Law Society of Scotland (Law Society) or Faculty of Advocates (Faculty)) have to be forwarded by these bodies to the SLCC.

8. Once the SLCC has received a complaint, it assesses whether it is a:

1. Service complaint – i.e. related to the quality of work; or a

2. Conduct complaint –i.e. related to a legal practitioner’s fitness to carry out work and behaviour outside of business.

7. Cases often involve issues of both service and conduct, with the result that both the SLCC and professional bodies can investigate different aspects of the same complaint.

8. If the complaint, or part of the complaint, concerns inadequate professional service, the SLCC investigates following procedures laid down in its rules and the Act. The SLCC can ultimately:

• Award the complainer up to £20,000 for any loss, inconvenience or distress resulting from inadequate professional service.

• Require the relevant legal practices/practitioners to reduce fees, re-do work and rectify any mistakes at their own expense.

• Report the matter to the relevant professional body if the practitioner shows a lack of legal competence.

9. Decisions of the SLCC can be appealed to the Court of Session.

10. If the complaint, or part of the complaint, concerns the conduct of a legal practitioner, the SLCC passes it on to the relevant professional body to investigate. The SLCC is not permitted to investigate conduct complaints, but it can investigate the way these have been handled by the relevant professional organisation (known as a handling complaint).

11. The Law Society is able to impose sanctions on solicitors whose conduct has been “unsatisfactory” and can prosecute solicitors before the Scottish Solicitors Discipline Tribunal (SSDT) where behaviour amounts to professional misconduct. The maximum compensation payable to a complainer is £5,000. In the most serious cases the SSDT can suspend a solicitor’s practising certificate or strike them from the roll of solicitors.

12. The Faculty deals with conduct complaints through a Complaints Committee comprising an equal number of advocates and lay members. Its decisions can be appealed to the Faculty of Advocates Disciplinary Tribunal – chaired by a retired senior judge and whose members include advocates and lay persons. In September 2016 the SLCC published a report which audited the operation of the Facultys investigation and disciplinary processes.

13. For further details on the complaints system see:

• The SLCC’s overview of the process for dealing with service and conduct complaints.

The Law Societys overview of how it deals with conduct complaints,

The Facultys overview of how it administers conduct complaints

14. In recent years there has been a degree of conflict between the SLCC and the Law Society over the operation of the complaints system. For example, in December 2016, the Law Society announced that it had commenced legal action against the SLCC over the way in which it categorises complaints as service complaints or conduct complaints. In addition, in April 2017 the Law Society noted in a press release that it was “frustrated and disappointed” about the increase in the SLCC levy to be paid by solicitors. The press release also referred to the complaints system as being, “slow, complex, cumbersome and expensive.”

England & Wales – complaints against lawyers

15. In England & Wales complaints about poor service against legal practitioners are dealt with by the Legal Ombudsman. Issues of professional misconduct are referred to the relevant “approved regulator” – i.e. the Bar Standards Authority (for barristers) and the Solicitors Regulation Authority (for solicitors), who can take disciplinary action. For details see the House of Commons Librarys briefing on complaints against solicitors and other lawyers.

Scottish Parliament Action

16. In session 4, the SLCC submitted a letter to the Scottish Parliament’s Justice Committee in which it argued that a review of the complaints procedure was needed. In response, the Justice Committee wrote to the Cabinet Secretary for Justice and received a response dated 31 October 2012 indicating that the SLCC and Law Society were, “developing a consensual approach to reach an agreement on the key improvements required.” Regulations amending the powers and duties of the SLCC were subsequently scrutinised by the Justice Committee, which recommended their approval by the Parliament (approval was granted on 13 August 2014).

17. The adequacy of the complaints system has also been raised in the current parliamentary session (see for example Motion S5M05079 lodged by Douglas Ross MSP on 6 April 2017).

The motion lodged by Douglas Ross, who is now an MP at Westminster read:

Motion S5M-05079: Douglas Ross, Highlands and Islands, Scottish Conservative and Unionist Party, Date Lodged: 06/04/2017

SLCC’s Proposed Levy Increase of 12.5%

That the Parliament recognises the concerns of solicitors and advocates following the announcement that the annual levy on legal practitioners to the Scottish Legal Complaints Commission (SLCC) is set to rise by 12.5%; understands that the SLCC has argued that recent increases in the number of complaints received against solicitors requires a commensurate increase in its budget; believes that some solicitors and advocates consider that these costs could be absorbed by the SLCC without a rise in the levy; understands that the Law Society of Scotland submitted a paper to the SLCC in response to the plans, but that its proposals were rejected and the increase was maintained; recognises the reported concerns among legal practitioners that the levy can be adjusted by any amount without a mechanism to effectively challenge it; acknowledges what it sees as the risk that the increase in the levy could be passed on to consumers, and calls on the SLCC to carefully consider the feedback that it has received from solicitors, advocates and the Law Society of Scotland.

Supported by: Dean Lockhart, Alexander Stewart, John Lamont, Alison Harris, Peter Chapman, Liz Smith, Gordon Lindhurst R, Edward Mountain, Donald Cameron R, Liam Kerr R, Miles Briggs, Murdo Fraser R, Adam Tomkins, John Scott, Margaret Mitchell, Rachael Hamilton R, Jackson Carlaw, Annie Wells, Jeremy Balfour, Ross Thomson, Brian Whittle, Jamie Greene, Alexander Burnett, Bill Bowman, Maurice Golden

Scottish Government Action

18. On 25 April 2017, the Scottish Government announced the launch of an independent review of the regulation of legal services in Scotland including the complaints system. According to the Scottish Government, the review

“…follows concerns that the current legislative framework is not fit for purpose and has not kept up with developments in the legal services market. There are also worries that the current processes for people wishing to make complaints about their solicitor are too slow and too complex.”

19. The review is expected to report to Scottish Ministers by the end of 2018.

FLAWED LEGAL SERVICES REVIEW – How Scottish Government’s attempt at independent review of lawyers ended up back in the hands of … lawyers:

In April 2017, the Scottish Government announced an ‘independent’ review into how lawyers regulate their own colleagues – with a remit to report back by the end of 2018.

The move by Scottish Minsters, coming after discussions with the Law Society of Scotland – is intended to answer concerns  amid rising numbers of complaints about poor legal services and the diminishing status of Scotland’s legal services sector,

However, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the review should include judges and the membership of the review team should be expanded to balance up the panel’s current top heavy legal interests membership.

Mr Neil recently branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC caught up in a cash payments scandal.

The review, led by NHS 24 chair Esther Roberton, is intended to make recommendations to modernise laws underpinning the legal profession’s current regulatory system including how complaints are handled.

This follows concerns that the current legislative framework is not fit for purpose and has not kept up with developments in the legal services market. There are also worries that the current processes for people wishing to make complaints about their solicitor are too slow and too complex.

However, doubts about the impartiality of the panel have been raised after the announcement by Legal Affairs Minister Annabelle Ewing revealed a top-heavy compliment of figures from the legal establishment who are keen on protecting solicitors’ self regulation against any move to increase consumer protection by way of independent regulation.

The list of panel members includes:

*Two former Presidents of the Law Society of Scotland;

* The current Chief Executive of the pro-lawyer Scottish Legal Complaints Commission;

* An outgoing Scottish Public Services Ombudsman widely criticised for ineptitude;

* The current chair of the Scottish Solicitors Discipline Tribunal (SSDT) – who struck off only six solicitors last year;

* The chair of a law firm whose partners have regularly appeared before the SSDT;

* A QC from an advocates stable where colleagues have been linked to a cash payments scandal;

* A former Crown Office Prosecutor & QC linked to events in the David Goodwillie rape case – where the victim was forced to sue her assailant through the civil courts after the Lord Advocate refused to prosecute the footballer.

Announcing the review, Legal Affairs Minister Annabel Ewing said: “Members of the public must be able to have confidence in the service they get from their solicitor. While this happens most of the time, I have been listening carefully to concerns that the current regulatory system in Scotland may leave consumers exposed and does not adequately address complaints.”

The latest move by Scottish Ministers to reform self regulation of solicitors and advocates comes years after a move in England & Wales to more robust independent regulation of legal services – which has left Scots consumers & clients at a clear disadvantage.

And while clients in the rest of the UK have much more of a chance to obtain redress against legal professionals who consistently provide poor legal services – and see their lawyers named and shamed in public by the Solicitors Regulation Authority (SRA) and Legal Ombudsman (LeO).

Review should include judiciary:

Scotland’s judges have earned themselves widespread criticism and condemnation at Holyrood and from the Judicial Complaints Reviewer (JCR) – after top judges failed to address complaints and become more transparent and accountable like other branches of Government.

Ongoing efforts by the Scottish Parliament’s Public Petitions Committee to create a register of judges’ interests have been flustered by two Lord Presidents – Lord Gill & current top judge Lord Carloway.

The proposal to bring greater transparency to Scotland’s judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The current review could include the judiciary in terms of how judges regulate themselves, however the Scottish Parliament should be left to get on with the task of creating a register of judges’ interests – given the five years of work already undertaken by MSPs on the thorny question of judicial declarations.

REVIEW THE REVIEW: Third attempt at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•      Christine McLintock – immediate past president Law Society of Scotland
•      Alistair Morris – chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC – Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC – MacKinnon Advocates (Faculty of Advocates)
•      Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar – chairman, Harper Macleod LLP
•      Prof Russel Griggs – chair of the Scottish Government’s Independent Regulatory Review Group
•      Trisha McAuley OBE – independent consumer expert

The Scottish Government’s review of legal services can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

 

 

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SUPREME SECRETS: UK Supreme Court refuses to publish recusal data – Court rejects release of info on UKSC justices conflicts of interest in response to Freedom of Information recusals probe on top UK court

Top UK court obstructed Scots media judicial recusals probe. THE UK Supreme Court (UKSC) has refused to disclose how many of it’s justices have recused themselves from court hearings over conflicts of interest or requests to step aside from cases.

And, the top court’s refusal to disclose the information only came about after the Information Commissioner (ICO) decided to issue a decision notice forcing the Supreme Court to respond to Freedom of Information requests submitted in May 2017.

Unlike in Scotland, where the Judiciary of Scotland publish a Register of Judicial Recusals– listing judges who have stood aside in cases for certain conflicts of interest (not including financial, wealth or other status related interests), the United Kingdom’s Supreme Court in London does not publish any recusal information.

However, Freedom of Information requests seeking disclosure of the UK Supreme Court’s recusal data encountered obstacles after UKSC officials took a decision to refuse to respond to Scottish journalists FOI requests.

And, it can also be revealed the Ministry of Justice – the body in charge of all courts in England & Wales followed the Supreme Court’s anti-transparency position – refusing to respond to a similar FOI request again sent from Scotland in May 2017.

Four months after the original Freedom of Information request was made to the UK Supreme Court, and amid numerous reminders to UKSC officials, the Information Commissioner’s office was contacted in July for assistance.

After discussions with ICO staff, the Information Commissioner gave the top court an extra month to reply.

However, the Supreme Court again refused to respond to any Freedom of Information requests from Scotland on the subject of recusals.

A legal insider claimed the refusal to reply to the requests originated over fears the material was to be referred to at the Scottish Parliament in connection with a five year probe on judges’ interests and a call to create a register of judicial interests – Petition PE1458: Register of Interests for members of Scotland’s judiciary.

However, after the Information Commissioner again contacted Scottish journalists making the requests, the ICO confirmed it would issue a determination to order the UK Supreme Court to respond to the requests.

In an email of 25 August 2017, Matthew Cresswell of the Information Commissioner’s office informed journalists seeking the recusal information: “As the Supreme Court have failed to respond to your information request within the statutory time limit set out in section 10(1) of the FOIA, the Commissioner can now start the process of ordering a decision notice on this case. A decision notice is a legally binding document that will require the public authority to provide a response.”

Coverage of the case then appeared in The National newspaper on 30 August – which prompted the Supreme Court to finally issue a response to the Freedom of Information requests.

However, the UKSC refused to divulge any details of UKSC justices’ recusals, citing cost grounds of gathering the information.

Paul Brigland, for the UK Supreme Court claimed logging errors where the real reasons for a lack of reply to the FOI requests, rather than a determined policy by the UK Supreme Court not to respond to a Scottish Freedom of Information request.

Paul Brigland, the Head of Office and Building Services & Departmental Records Officer said: “Firstly, I would like to apologise for the mishandling of your request and the failure to reply. This is entirely due to an error in our logging process in which this request was incorrectly marked as dealt with, but had in fact been mistaken for a separate request you made under the FOLA at the same time which we responded to within the correct time limit. I hope you will accept our apologies for this error. I should also explain that since you made your request we have changed the way in which we log and handle FOI requests, so this situation should not arise in the future.”

Paul Brigland then confirmed the UKSC held information relevant to the request.

Mr Brigland said: “I can confirm that we do hold some information relevant to your request.”

However, Paul Brigland claimed the work involved and cost would prohibit the information being disclosed.

Brigland added: “In order to provide you with the information on the scale that you have requested would require a search of individual paper case records. We do not maintain a central record of any such requests as there is no business need to do so.”

“Section 12 of the FOLA makes provision for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit, which for central government is set at £600. This represents the estimated cost of one person spending 3.5 working days in determining whether the Department holds the information, locating, retrieving and extracting the information.”

“As your request is widely framed, I estimate that it will take us more than 3.5 working days to determine appropriate material within the scope of your request, and locate, retrieve and extract that information.”

“I am sorry that on this occasion I cannot suggest ways in which you could narrow the scope of your request to bring it within the cost limit. This is because any information sought under a revised request, for example requesting information for a shorter time period, would still be exempt under section 32 (court records).”

“However, outside the terms of the Act, and to be helpful, I can explain the following.”

“Where there are reasons that a Justice considers there might be an issue of recusal, that information is sent to the Justice chairing the panel (normally the President or Deputy President) and then a letter is sent to the parties. I can confirm that there have been no instances where we have written to parties that has subsequently led to a request from the parties for a Justice to stand down.”

“Similarly, I can confirm that there have been no instances where a Justice has recused themselves following a request initiated by a party to a case.”

However, the explanation offered by the UKSC does not actually confirm if any justices have refused to recuse themselves following any request from litigants or parties to do so.

And, as no register of recusals currently exists at the UK Supreme Court, legal insiders have suggested the explanations from the UKSC on recusal data should be taken with a pinch of salt.

A legal insider has suggested legal teams operating in the UK Supreme Court are dissuaded from – or not minded to ask for recusals.

The source said “ justices do not take well to their position being questioned to recuse from a hearing”.

A solicitor from England who has now come forward on the issue said he was aware of certain cases at the Supreme Court which may have necessitated a recusal.

The solicitor, who has studied the details contained in Scotland’s register of judicial recusals said it was clear in some cases before the UKSC, comparable examples of justices links to issues do exist, and therefore should be acknowledged in a similar register of recusals at the Supreme Court.

However, the solicitor cited the Supreme Court’s determination to avoid declaring justice’s interests in a register of interests as one reason which the UKSC is avoiding publishing any data on it’s justices’ recusals.

Amid the Supreme Court’s refusal to release information on recusals, Scottish journalists asked for a review of the decision, which was handled by William Arnold, the Head of Corporate Services.

Mr Arnold did not provide a review response on material with the UK Supreme Court logo, instead responding by email in the following terms.

Willian Arnold said: “As Mr Brigland explained, the UK Supreme Court does not maintain any formal central register of requests  to Justices to recuse themselves  from particular cases, since there has never been any operational need to do so.”

“Identifying the record of any such requests would therefore entail reviewing all the case papers in every case heard since January 2014 to the present date. I am satisfied that Mr Brigland was correct in assessing that carrying out this review would require staff resource input, which would exceed the cost limit for answering FOI requests of £600.”

“As Mr Brigland went on to say, this would be a pointless exercise in any event, because any such recusal request, if one was found, would form part of the records of the individual court case; and in Section 32 of the FOI Act Parliament has enacted an exemption of court records from the FOI regime. This exemption is not subject to any kind of public interest test, so the UKSC would not in any case be able to release any such recusal request, if one was found, to you under the FOI regime. I agree with this analysis.”

“In order to try to be helpful, Mr Brigland, however, went on to tell you, outside the provisions of the Act, since this is not recorded information which the UKSC holds, that the practice is that where a Justice considers he might have interests which might generate a request for recusal, a letter is sent to the parties outlining those interests.”

“Nobody here of those staff who have been at the UKSC since its inception in 2009 can remember any instance where such a letter has resulted in a request from a party to a case for a Justice to recuse themselves. Equally nobody here can recall any instance where a party has ever initiated a request for a Justice to recuse themselves, so the question of acceding to or rejecting such a request has never arisen.”

Mr Arnold went on to contradict Paul Brigland’s initial explanation where he stated the UKSC did hold material in relation to recusal information.

William Arnold stated: “The only sentence in Mr Brigland’s letter which I do repudiate is on page one  where he says “I can confirm that we do hold some information relevant to your request.”

“He may have been thinking of the letters we send to parties, where a Justice believes they have interests they should disclose, as set out above, but it is not clear to me that these are strictly relevant to your request; and I cannot find any other evidence which leads to the conclusion that the UKSC ‘holds some information relevant to your request’.”

“Indeed I have reached the opposite conclusion – that we likely do not hold any such information, although we could not be formally sure of that without carrying out the review of all our cases, which on cost grounds, as set out above, we have declined to do.”

A barrister who studied the correspondence from the UK Supreme Court, including the initial FOI response and the UKSC’s review – said the responses were evasive.

He also noted the UKSC’s position on holding no recusal data revolved around process where a letter is sent out to parties in relation to a justices’ conflict of interest – rather than an interest being raised by a party or legal representative.

The barrister said: “The UK Supreme Court has existed for eight years. I think it highly unlikely not one single request for a recusal at the Supreme Court has been made during such a considerable length of time.”

While the UK Supreme Court remains determined to refuse any further disclosure of information on judicial recusals, the Information Commissioner has been contacted again over the Ministry of Justice’s refusal to answer similar requests for disclosure of recusal information from the English courts.

A decision from the Information Commissioner on this matter is awaited.

However, the position Scottish users of the UK Supreme Court now face is that judges in Scotland are required to publish their recusal data, while the UKSC has decided against any such transparency – leaving Scottish court users at a considerable disadvantage.

The National reported on the battle to obtain recusal information from the UK Supreme Court and the Ministry of Justice in two articles, published below:

Victory for Scottish information campaigner in battle with Supreme Court

Martin Hannan Journalist 30th August

THE UK Supreme Court will be ordered by the Information Commissioner to reply to question from a Scottish legal rights campaigner, after it refused to say whether it had a register of recusals by court justices.

Recusal is the term used when a judge has to step aside from a case because of a possible conflict of interest. It is thought that various Supreme Court justices have recused themselves from numerous cases, but no such information is made public.

The National can reveal the Information Commissioner has decided to act after the Supreme Court and the Ministry of Justice for England and Wales failed to reply to blogger and campaigner Peter Cherbi’s request for information.

A register of recusals has been in existence for several years in Scotland – it can be viewed online – and Cherbi wants to see the system extended to all the judiciary in the UK.

The Information Commissioner told Cherbi, above: “As the Supreme Court has failed to respond to your information request within the statutory time limit set out in section 10 (1) of the Freedom of Information Act, the Commissioner can now start the process of ordering a decision notice on this case.

“A decision notice is a legally binding document that will require the public authority to provide a response.”

Sources at the Supreme Court have indicated that the decision notice has not been received by the court, but that it will be acted upon.

Cherbi’s long-term aim is to see the creation of a register of judicial interests similar to that which MPs, MSPs and police officers must complete. His petition calling for that register has been debated by MSPs for nearly six years, and a decision is due next year. He feels the delay is an attempt to stop the register of interests. The National can reveal that lawyers in London support Cherbi’s case, but think judges will oppose it.

One legal source said: “They fear recusals up here in Scotland are inevitably leading to a register of judicial interests and it will lead to the same thing happening in England and Wales.”

The Supreme Court has already decided against a register of interests, stating: “The justices have decided it would not be appropriate, or indeed feasible, for them to have a comprehensive register of interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them.

“To draw up a register of interests, which people believed to be complete, could potentially be misleading. Instead the justices of the Supreme Court have agreed a formal code of conduct by which they will all be bound, and which is now publicly available on the court’s website.

“In addition, all the justices have taken the judicial oath … which obliges them to ‘do right to all manner of people after the law and usages of this realm without fear or favour, affection or ill will.

“And, as is already the practice with other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves, whether it is a substantive hearing, or an application for permission to appeal.”

Cherbi said: “Refusing access to information is not accidental. We are looking here at a coordinated attempt to thwart the introduction of Scottish judicial transparency to the rest of the UK.”

The Ministry of Justice referred The National to the Supreme Court where a spokesman confirmed that they were awaiting the Commissioner’s formal decision.

Supreme Court finally responds to Scottish FoI request about recusals … and rejects it

Martin Hannan Journalist 06 September 2017

THE UK Supreme Court has refused to issue information on how many of its justices have stood aside from cases because of a conflict of interest.

The National revealed last week that the Information Commissioner in England had ordered the Supreme Court to deal with Scottish law campaigner Peter Cherbi’s freedom of information request after it failed to reply to him in time.

Now the Supreme Court has written to Cherbi apologising for failing to deal with his request timeously but saying it will not give him the information as it would cost too much to provide it.

“That’s just ludicrous,” Cherbi said yesterday, “and it just makes people all the more suspicious that the Supreme Court is covering up something that the public should have the right to know.”

In another development, Cherbi is to ask the Scottish Parliament’s Petitions Committee to invite the new President of the Supreme Court to give evidence as to why she and her fellow justices oppose a register of interests for the judiciary similar to that for MPs and police officers.

The committee has been discussing Cherbi’s call for a register of judicial interests in Scotland for almost five years.

Cherbi said: “I would like Lady Hale to come to Holyrood and explain why the UK Supreme Court’s members are so set against a register of interests.

“We have already seen Scotland’s top judges opposing it, and it would be good to know why the UK Supreme Court opposes it – after all, the Supreme Court sits in judgement on Scottish cases all the time, so why should the public not be able to see what interests, financial and otherwise, that judges have?

“As the President of the UK Supreme Court, Baroness Hale will be able to give a substantive account of why Supreme Court justices no longer consider they require to adhere to the expectation of completing a register of interests as they did pre-UK Supreme Court days as Law Lords in the House of Lords.

“After all, we ask our MPs and MSPs and police officers to register their interests so that everything is seen to be above board, so why not the judges in the highest court in the land?”

Cherbi also wants Lady Hale to tell the committee why the Supreme Court does not keep a register of recusals (when judges step aside from a case) as happens in the Scottish courts.

In its delayed response to Cherbi, the Supreme Court said: “To provide you with the information on the scale that you have requested would require a search of individual paper case records. We do not maintain a central record of any such requests as there is no business need to do so. Section 12 of the Freedom Of Information Act makes provision for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit, which for central government is set at £600.

“This represents the estimated cost of one person spending 3.5 working days in determining whether the department holds the information, locating, retrieving and extracting the information.

“As your request is widely framed, I estimate that it will take us more than 3.5 working days to determine appropriate material within the scope of your request, and locate, retrieve and extract that information.”

A legal expert told The National: “The information on recusals certainly exists, so all that needs to be done is to send an email to the justices and their assistants and the information could be gathered in a day.”

Cherbi said: “We have a register of recusals in Scotland. It’s time they had one for the Supreme Court and all English and Welsh courts.”

Previous reports on moves to publish judicial recusals in Scotland and a media investigation which prompted further reforms of the Scottish Register of Judicial Recusals can be found here: Judicial Recusals in Scotland – Cases where judges have stood down over conflicts of interest

Recent reforms to the way in which judicial recusals are recorded and entered in Scotland’s register of judicial recusals were reported here: RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

 

 

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JUDICIAL REGISTER: Calls for all UK judges including UK Supreme Court, and Tribunals to declare links to business, wealth, professional & other interests in published registers of interests

All UK Judges & tribunals should declare interests. AS THE Scottish Parliament continues an investigation into proposals calling for members of the Judiciary of Scotland to declare their interests, a call has been made to roll out a publicly available judicial register for all judges & tribunals all across the UK.

Calls to bring all UK judges, including top judges based at the UK Supreme Court, and all tribunal members into line with judicial transparency proposals currently being considered in Scotland – would require those who sit in judgement to declare all interests, professional & personal links, wealth, property and other interests, in a register of interests, similar to disclosures made by politicians and others in public life.

The move comes after a recent development where Scotland’s top judge conceded to calls for full transparency on judicial recusals, reported last week here: RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

Attempts by Scotland’s judiciary to become more transparent and open up the workings of Scotland’s courts and judiciary to the public, have come in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

The creation of such a register would ensure full transparency for the most powerful people in the justice system – the judiciary.

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

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

A full listing of evidence in support of the petition calling for a register of judicial interests can be found here: JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests – points to increased public awareness of judiciary, expectation of transparency in court

And, two of Scotland’s recent top judges, former Lord President Lord Brian Gill, and current Lord President Lord Carloway, have testified before the Scottish Parliament on the petition, both failing to prove any case against creating a register of judicial interests.

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

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

The National reports on recent developments here:

Fresh call for all UK judges to register interests

Campaigner says UKSupreme Court should follow Scotland example on Judicial Recusals

Martin Hannan Journalist 2 August 2017 The National

THE UK Supreme Court and the courts in England and Wales and all tribunals across Britain do not have a system that shows where judges and tribunal members have been forced to step aside from cases due to actual or possible conflicts of interest.

As The National revealed on Monday, Scotland is shortly going to have an expanded register of judicial recusals that records when judges and sheriffs withdraw from cases, but no such register exists for the judiciary south of the Border or for any public tribunal.

Now the legal campaigner who has fought for Scottish judges to declare their interests for more than five years is calling on UK Supreme Court justices, the English and Welsh judiciary and the various tribunals to do the same and keep a register of recusals.

Peter Cherbi’s current petition before the Scottish Parliament is asking that the judiciary in this country declare their financial interests, as US Supreme Court Justices must do.

Cherbi accepts, however, that the Judicial Office in Scotland has already acted to bring in a more details register of recusals. Now he wants the UK Supreme Court to do the same.

Cherbi said: “We have now moved forward in Scotland in terms of judicial transparency with the publication of judicial recusals. If Scotland can do it, so can England and Wales, and the courts in Northern Ireland. The English justice system touts itself worldwide as the law of choice for litigants. If this is truly the case, then it is for the UK judiciary to be as transparent as Scotland and publish their own recusal register, and a register of interests as we are working on here.

“With the recent announcement of Lady Hale being appointed as President of the UK Supreme Court, I will be writing to her, requesting she consider creating a register of recusals for UKSC, as so far, the UK Supreme Court has also been silent on matters of recusals, which the public, court users, and legal representatives have a right to know.

“I shall also be contacting the European Court of Justice and the European Union to ask that courts throughout the EU be encouraged to publish recusal data and more detail on their judges. All EU citizens should have the same entitlements to judicial transparency we are now creating in Scotland.”

Cherbi thinks the Supreme Court and English and Welsh courts can lean learn from the experience here, where a register of recusals has been kept since 2014 and which is to be expanded.

He said: “Our approach in Scotland to improving courtroom and judicial transparency, fuelled by the hard work of cross party MSPs, the Scottish Parliament, fantastic support from Judicial Complaints Reviewers Moi Ali and Gillian Thompson, and backing by the media is a good reminder that team work and cross party support can bring significant change for the good.”

He also wants entities such as employment tribunals to be more open: “My ongoing investigations into tribunals suggests declarations of interests are more often than not concealed, and recusals are few and far between, if ever occurring, and there is little if anything those before tribunals can do about it.

“The public, who are being judged, are entitled to know who their judges are. It is as simple as that.

“Those who judge cannot be judge in their own cause, nor write and approve their own rules, without expectation of full transparency and accountability. Independence of the judiciary is guaranteed, and no one would ever question it. However, those who judge must live by the same laws and expectations of transparency they enforce upon the rest of us.

A spokesman for the UK Supreme Courts said: “Justices are bound by their judicial oath and a code of conduct to declare any relevant interest in a case to the parties, before they consider the matter. There are no current plans to publish a register of 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.

 

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REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

Lord Carloway – judges will not declare interests. SCOTLAND’S top judge has come in for sharp criticism after telling MSPs he is against judicial transparency and the creation of a register of judges’ interests – unless scandal or corruption is discovered by the judiciary within their own ranks.

Yesterday, Lord Carloway (real name Colin Sutherland) appeared before members of Holyrood’s Public Petitions Committee, where in his evidence, the judge blasted transparency, court users, litigants the press, public, the internet and even social media – as reasons judges must be exempt from declaring their interests.

Carloway – who earns over £220,000 a year as Scotland’s ‘top judge’ – even declared to MSPs that creating a register of interests for judges would deter recruitment of ‘talented’ lawyers – reported in more detail by The National

The protests from Scotland’s current top judge are in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

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 short session with Lord Carloway held yesterday, lasted a mere thirty six minutes.

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

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

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

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

Scottish Parliament’s Public Petitions Committee’s deliberations on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

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.

In a statement issued to the media late yesterday, Moi Ali – Scotland’s first Judicial Complaints Reviewer who gave evidence to the Scottish Parliament in 2013, criticised the stance of the Lord President at today’s hearing.

Moi Ali said: “I hold judges in high esteem for the important work they do, but I regret to say that Lord Carloway did a great disservice to the judiciary in his evidence to the Petitions Committee. He appears to have a very low opinion of users of the Court Service, suggesting that people who do not get the result they want may act with resentful, malicious and hostile intent. This is insulting to the public at large.

“His suggestion that a register of interests would lead to retaliation by unsuccessful litigants in the form of online fraud is frankly ludicrous and deeply offensive. I personally handled complaints reviews by unsuccessful litigants when I was the independent Judicial Complaints Reviewer, without any kind of threat or malicious action – even where I did not find in favour of the complainant.”

“I published a register of interests when in that role, despite not being required to do so. Why? Because it’s a basic expectation that that’s what public servants do in the twenty-first century.”

“The fact is that the judiciary do not wish to be open and transparent in this respect, and choose to present themselves as a special case. It seems to me that if a register is required to be completed by MPs, MSPs and public Board members, then it must also be required of the judiciary.”

“My opinion is not founded on a belief that judges are corrupt; rather, it comes from the view that transparency builds trust and confidence. As a society, we must be able to have complete confidence in our judiciary – and that starts with their openness and transparency.”

In a statement to the media, law blogger & petitioner Peter Cherbi said: “Transparency apparently stops at the doors of our courts and that’s it, Judges are to remain judges in their own cause and we shouldn’t have a register of interests until there is a scandal. Not on in 2017.”

Lord Carloway doesn’t seem to consider the fact these litigants and their legal representatives he holds in such distain – prop up his £220K a year job and our courts in exorbitant fees and hundreds of millions of pounds in publicly funded legal aid.

“And just exactly why does transparency inhibit the recruitment of judges? All other branches of public life have registers of interest and do just fine on recruitment. Lord Carloway is really struggling with this one.”

“Moi Ali was right all along. These people are the most powerful, and require the most transparency. Everyone gets the idea of transparency except the judiciary. Time now for a full register of judicial interests and for Parliament to act where the Lord President has failed.”

“Carloway’s arguments against a register are waffle – look at how the Sunday Times was treated in England over the Cruddas case where judges failed to declare interests in their links to political parties.”

“We should remember this is not just about protecting court users, a register is about protecting the public and the media who in many cases as we know, advance the cause of transparency and public interest where Governments, the Executive, public bodies and the courts all fail.”

Full report & video footage of Lord Carloway’s evidence to the Public Petitions Committee:

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

As the hearing began, Johann Lamont opened questions to Lord Carloway on arguments he put forward relating to “online fraud” as an inhibition to a register of judicial interests.

Carloway failed to provide any example in response to the questions on his own argument, and then claimed he was unaware of details of any other registers of interest.

The Lord President then turned on court litigants, claiming a register of judicial interests and any attempts to bring transparency to the judicial bench would help “paranoid” litigants take revenge on a judge after losing their cases.

Carloway – who has been a judge for 18 years, then went on to castigate financial declarations of interest, claiming if such a register existed he would not be able to hire “lawyers of excellence” for positions up to £200,000 a year judicial jobs.

The Lord President even complained about the level of judicial salaries and pensions during his evidence to MSPs as yet another reason and “disincentive to lawyers of experience and skill to become members of the judiciary”.

He said: “We have a relatively small pool of lawyers of excellence who are capable of taking on the job of being a member of our senior judiciary.

“We have particular difficulties with recruitment at the moment. If I were to say to senior members of the profession, ‘By the way, if you wish to become a judge you will have to declare all your pecuniary interests and open them to public scrutiny’, I have no doubt whatsoever that that would act as a powerful disincentive for lawyers of experience and skill becoming members of the judiciary.

“I can assure the committee, we need them more than they need us.”

In response to questions from Angus MacDonald on declarations of judicial interests in the United States, Lord Carloway said he was not in a position to comment on the US judicial system as he did not know enough about it.

However, it recently emerged Carloway regularly visits judicial gatherings in North America at taxpayers expense and mingles with judicial groups at plush locations for ‘legal conferences’.

Angus MacDonald then challenged Lord Carloway on recusals, in relation to cases where judges have either concealed conflicts of interest or have refused to stand aside from a case.

Mr MacDonald quizzed the Lord President on omissions in the recusals register – to which Lord Carloway said he was not concerned about.

The Lord President then told MSPs there was only one omission he was aware of in the recusals register.

However in response to a recent DOI investigation into judicial recusals, a number of cases are now being studied by journalists which appear to have been omitted from the recusals register.

And in at least one case, it has been alleged court clerks actively discouraged a motion for recusal, and suspicions are, more cases may fall into this category.

In a question from Rhona Mackay MSP (SNP) who asked Lord Carloway what the Law Society of Scotland’s view was on a register of interests.

Lord Carloway bluntly replied “I don’t know the answer to that”.

Maurice Corry MSP then asked Lord Carloway if he would provide further details to the register of recusals and options to make the recusals register more transparent.

Lord Carloway said it was not particularly required to apply further details to the current register of recusals, which is currently published by the Judicial Office with sparse detail.

Angus MacDonald then asked the top judge if he could be content to see clerical errors corrected in the register with a footnote if applied at a later date. Lord Carloway said yes.

Alex Neil MSP, who attended the Petitions Committee as a guest, then asked Lord Carloway if it should be left up to a judge to decide on an issue of principal if it should be left up to a judge to recuse themselves or should it be for the Lord President or the keeper of the rolls to insist upon if there is a conflict of interest.

Lord Caloway said he was happy with the system as it stood.

However Mr Neil pressed Lord Carloway on the point, saying the system was balanced against people who come to court for justice, particularly if they are under resourced or never find out about conflicts of interest in court.

Responding, Lord Carloway reverted to an obscure report prepared by a group of European judges which said there was no need for a register of judicial interests in the UK.

However, the judges and legal team who prepared the GRECO report referred to by Lord Carloway – are also against the introduction of registers of interests for members of the judiciary in the EU.

Carloway then insisted the Scottish judiciary was “not corrupt”, and said he would not even consider a register of interests until there was evidence of corruption.

The Lord President said: “Until such time as it’s demonstrated that there is corruption within the Scottish judiciary, I’m 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 put further questions to Lord Carloway, comparing the existence of the register of interests for MSPs which exists at the Scottish Parliament to ensure transparency.

Mr Neil reminded the Lord President the existence of the register of interests for MSPs did not exist due to allegations of corruption, rather to ensure transparency.

Responding to a case quoted by Alex Neil in relation to a construction firm –  Advance Construction Ltd – in which a Court of Session judge & Privy Councillor heard a case eight times which involved his own son – Lord Carloway said he was happy Lord Malcolm acted properly without recusing himself in the case.

Carloway claimed that Lord Malcolm had acted in accordance with the code of judicial ethics.

Carloway was then challenged by Alex Neil on whether the top judge had actually investigated details of the case – to which Carloway initially claimed he was not aware of any documents.

However, pressed on the matter, the judge admitted he had read documents from the individuals named by Mr Neil.

Lord Carloway said “As far as I am aware the documents were not addressed to me, but I could be wrong about that”

An earlier investigation by the media revealed  Lord Malcolm (real name Colin Campbell QC) heard the case in question no less than eight times while his son – Ewen Campbell – worked for Levy & Mcrae  – the Glasgow law firm now subject to multi million pound writs in connection with the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

Ewen Campbell had been appointed to run the case by a judicial colleague of Lord Malcolm & Lord Carloway – Sheriff Peter Watson who was at the time a senior partner of Levy & Mcrae.

Sheriff Watson was since suspended from the judiciary by Lord Brian Gill, who as Lord President in 2015, suspended Watson to protect public confidence in the judiciary – after both Watson and Levy & Mcrae were named in a multi million pound writ relating to the loss of millions of pounds in the collapse of the Heather Capital hedge fund.

Responding to further points raised by Alex Neil, Lord Carloway hit out against suggestions judges should register what their relatives are doing and where they are working.

Carloway said “this was going way beyond I suspect what is expected of politicians in a register of interests”.

However, Alex Neil informed Lord Carloway that MSPs are already required to register what their close relatives do.

In response, Lord Carloway compared politicians to members of the judiciary, and claimed judges require a different type of independence as enjoyed by politicians.

The top judge said interests in the judiciary usually relate to social connections with people rather than pecuniary interests, which do not appear in the register of recusals.

However, as there are no requirements to declare pecuniary interests in the current recusals register, it is of particular note not one financial related recusal has appeared in the register of recusals, which covers 700 members of the judiciary, some of whom are earning up to £220,000 a year, and for many years.

In further points put to Lord Carloway, Mr Neil said that the perception of fairness is not present in the way matters are conducted in court.

In response, Carloway again referred back to the case mentioned by Mr Neil, saying he was happy with the way in which Lord Malcolm, had handled the court correctly.

Carloway claimed there was no active involvement whatsoever by Lord Malcolm’s son – Ewen Campbell – who is now an advocate.

However, Ewen Campbell’s name is listed on court papers from the outset of hearings in the Court of Session in front of his father, Lord Malcolm.

And, it has since emerged a written and signed statement by Ewen Campbell as a witness in the case mentioned by Alex Neil has been provided to journalists, along with a statement signed by suspended sheriff Peter Watson – a judicial colleague of Lord Carloway.

These developments and statements, which are to be published in a further investigation into judicial recusals, now calls into question Lord Carloway’s claims in his evidence to MSPs.

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

 

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TO PARLY, M’LORD: Scotland’s top judge Lord Carloway finally offers to give evidence to Scottish Parliament probe on register of judges’ interests – amid growing calls for full judicial transparency

Lord Carloway to face Holyrood on judicial transparency. SCOTLAND’S top judge has made an offer to appear before the Scottish Parliament’s Public Petitions Committee who are conducting a FIVE YEAR probe on proposals to create a register of judges’ interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary

Lord President Lord Carloway made the offer in a detailed letter offering some concessions to MSPs – which has now been published by the Scottish Parliament.

In his letter to MSPs, Lord Carloway said: “I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.”

Lord Carloway (real name Colin Sutherland) also claimed in his letter to MSPs – that the subject of “online fraud” should also be considered as a reason to keep judges links to big business and significant wealth away from public gaze.

However, MSPs have been reminded the subject of online fraud has proved no obstruction to the thousands of registers of interest already in operation across the public sector – from local councillors and workers on local government right up to the Prime Minister, politicians and even members of the security services.

And, while Lord Carloway remains bitterly opposed to full judicial transparency – which would see the creation of a register of judicial interests to match all other branches of Government and those in public life including MSPs – the top judge has given a further concession to the petition in a decision to expand the current “recusals register” – where judges step aside from cases due to a conflict of interest.

Writing to the Petitions Committee, Lord Carloway said: “I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.”

The concession from the Lord President comes after growing calls from those who support the judicial transparency proposals to give full information to the public on why judges are asked to recuse themselves in cases where conflicts of interest arise in court.

Since 2014 – when the then Lord President Lord Brian Gill created the register of recusals in an attempt to head off demands by MSPs and the public to bring in the register of interests for judges, there have been over 70 recusals from members of Scotland’s judiciary in cases throughout Scotland.

The recusals have occurred on issues where conflicts of interest have arisen – such as membership of charities, relationships between judges and those appearing before them in court, and other ‘conflicts of interest’.

In one case during 2014, Lord President Lord Gill was forced to step aside from a court hearing after he realised his son – Advocate Brian Gill, represented one of the parties in a court action which the Judicial Office have refused to give any further detail on since the recusal took place in late June 2014.

However, a recent investigation by the media has revealed judges are refusing to recuse themselves in high profile cases in the Court of Session – where inks to the judiciary permeate right across the court room.

An investigation published by Diary of Injustice earlier this month revealed Court of Session judge Lord Malcolm heard a case eight times, where his own son Ewen Campbell had an interest as a representative and adviser to the defenders – construction company Advance Construction Ltd.

Investigations by journalists has revealed there is no written record of any recusal by Lord Malcolm (real name Colin Malcolm Campbell) – who only stood aside from considering the action well into the hearings after he ‘realised’ the involvement of his son in the case.

Lord Malcolm then handed the case over to Lord Woolman – who heard the proof in the case – which has now become the subject of increasing questions after material was handed to the media suggesting key parts of the evidence founded upon by Lord Woolman have no evidential basis.

In an unprecedented move, Lord Malcolm then returned to the case for an eighth hearing to hand over money which had been lodged by a third party as caution for an appeal.

It is thought this is the first incidence of a judge returning to a case he previously stood aside from, yet there are no details contained in the current register of recusals, even though the pursuer lodged an appeal against Lord Malcolm’s reappearance in the damages claim.

The move has been frowned upon by legal observers – many of whom agree a judge should not be allowed to sit on a case they have previously recused themselves from, and calls are now being made to the Lord President to establish such a rule in the code of Judicial ethics and conduct, ensuring similar events do not take place in the future.

And, in relation to media enquiries seeking an explanation for Lord Malcolm’s decision to return to the case, the Judicial Office have refused to give any details on why Lord Malcolm refused to consider his position as a recusal matter.

The high value civil damages claim – Donal Nolan v Advance Construction Ltd – initially heard in Hamilton Sheriff Court and then transferred to the Court of Session for a ‘speedy’ resolution – involved the dumping of 16,500 tons of contaminated waste by the defenders from a North Lanarkshire Council PPI project on the land of Donal Nolan – the well known & respected former National Hunt jockey & trainer.

At the time, the defenders solicitor – Ewen Campbell – worked for Glasgow based Levy & Mcrae – a  law firm linked to Scotland’s judiciary and more recently named in a writ in relation to the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

Papers now lodged at Holyrood reveal Ewen Campbell reported back to former Levy & Mcrae senior partner and suspended Sheriff Peter Watson on the day to day running of the case for Advance Construction Ltd.

Details of the shocking case – which has seen no less than seven additional judges hear motions and interlocutors, has now been made to MSPs studying the plans to create the register of interests – which would also require members of the judiciary to disclose their links to others in the legal profession, links to business and other information.

The proposal to bring greater transparency to Scotland’s judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

Lord Carloway’s letter to the Public Petitions Committee is now published in full, here: Letter from Lord Carloway to Public Petitions Committee re Petition PE1458

PE1458: REGISTER OF INTERESTS FOR MEMBERS OF SCOTLAND’S JUDICIARY

I refer to your letter of 23 January. I have taken some time to review the evidence provided to the Committee by Professor Alan Paterson and to reconsider the position.

I note that you request a response on three specific issues, as follows:-

• First, whether there have been any inhibitions to the administration of justice arising in relation to those members of the judiciary who have to register financial or other interests in connection with other roles.

Scotland has a relatively small judiciary and only a very small proportion of those judges and sheriffs sit on bodies which require disclosure of financial interests. For example, only four- one senator, the Chair of the Scottish Land Court, one sheriff principal and one sheriff – sit on the Judicial Appointments Board, while seven judges – three Senators including myself, a sheriff principal, two sheriffs and a JP – sit on the Board of the SCTS. I am aware that my predecessor, Lord Gill, in his letter of 5 February 2013 noted that a register of judicial interests could have other consequences. He said:

“Consideration requires to be given to judges’ -privacy and freedom from harassment by aggressive media or hostile individuals including dissatisfied litigants. It is possible that the information held on such a register could be abused.”

All senators and all sheriffs exercise a civil and criminal jurisdiction. I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that. That has not, to the best of my knowledge, happened with the small cohort of judges who have disclosed financial interests through JABS or the SCTS Board, but that sample is so small that no comfort can be derived from that. Rather, I expect that judges will become increasingly vigilant about the risks of personal information appearing in the public domain.

Accordingly, one possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these if that requires the disclosure of financial interests. In the same way, a register of judicial interests may have a damaging effect on judicial recruitment. You may be aware that, partly because of major changes to pension arrangements, difficulties have arisen in the recruitment of the senior judiciary. Revealing personal financial information is likely to act as a further powerful disincentive.

• Secondly, whether a decision on “recusal” should rest with a judge other than the individual who has been challenged or who has been identified as having a potential conflict of interests.

I assume that the proposition here is that the decision on declinature of jurisdiction should be made by someone other than the judge hearing the case, presumably another judge, or judges. At present, if a judge is asked to decline jurisdiction, and does not do so, then that decision can be reviewed, on appeal, by the appellate court. Any other system would not be an improvement. Cases are often allocated to judges, both in the Court of Session and the sheriff courts, at short notice. A party or a judge may not be aware of the circumstances in which the issue of declinature must be considered until the morning of the case. If he then requires to pass that issue to another judge, for consideration, the case is likely to be adjourned for that purpose, to the disappointment of litigants and the inefficient disposal of business in the courts.

The present system whereby a judge, having seen the papers and being aware of the precise extent of any interest financial or otherwise he may have, makes the decision on recusal, is the preferred option. Judges are invariably prudent in declining jurisdiction appropriately, but the right of appeal ensures that in, any rare case where that is not done, redress is available.

I should add that, as a generality, the problem, if there is one at all, rests with an over cautious approach to declinature: ie with judges or sheriffs declining jurisdiction and thus prompting an adjournment and causing delay when they should, in accordance with their duty, have heard and determined the cases placed before them.

• Thirdly, whether it would be in the interests of greater transparency for the “Register of Recusals” to be extended to cover instances where recusal has been considered or requested but jurisdiction has not been declined.

I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.

I hope this is of assistance to the Committee. I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.

Responding to the letter from Lord Carloway, the petitioner has lodged a reply with MSPs.

The petitioner endorsed Lord Carloway’s offer to give evidence before the Committee, answered Lord Carloway’s concerns in relation to online fraud.

Moves by the Lord President to expand detail in the current recusals register were also welcomed by the petitioner, who suggested Lord Carloway add the same level of detail to the register of recusals which also appears in court opinions published on the Scottish Courts and Tribunals Service website.

Writing to the Petitions Committee, the petitioner said:

Noting Lord Carloway’s offer to give evidence in public session, I urge members to invite the Lord President to an evidence session so the Committee and public can hear from the current Lord President on this petition and evidence submitted to the Committee.

Regarding Lord Carloway’s concerns about online fraud and the proposal to create a register of judicial interests, I would point out the subject of online fraud has not particularly affected or precluded other branches of public services and government, including the Scottish Parliament, from maintaining registers of interests which include financial and other details – for a considerable length of time.

Online fraud is a matter which everyone in society must deal with. Information readily published by the courts, the Crown Office and other bodies within the justice system in relation to court opinions or verdicts, contain financial, location or other personally identifiable information of significantly greater detail than is currently published about any member of Scotland’s judiciary.

With regards to concerns in relation to judges declining positions on public bodies which require the disclosure of financial details, I wish to point out judges are wealthy, well connected and influential members of the most powerful group of people in society – the judiciary. The viewpoints they hold, their status, power, and their part in decision making goes on to form public policy or law, impacting on all areas of public life.

Members of the judiciary who hold positions on public bodies, remunerated or not, should be required to declare their financial and other interests, like other members of those bodies, as there is a public expectation of transparency in all decision making and branches of Government.

Noting Lord Carloway’s comments on the current system of judges deciding whether to recuse themselves or not, this system has been proved to hold significant failures, where cases have been heard by judges who refuse to recuse themselves or, have failed to declare an interest.

The Committee has already been made aware of such cases where in one example an individual was denied their liberty, then an appeal judge who threw out the appeal, claimed in a newspaper investigation he forgot he prosecuted the same individual who was appealing his conviction.

A new system of someone else deciding if a judge should recuse themselves, along with a full and open account of the recusal decision, should be created. I do not believe such a system would pose unwarranted financial expense or considerable delays to cases.

Noting Lord Carloway’s acceptance of my previous suggestions to widen the scope of the recusals register, I support the inclusion of details where a judge is asked to recuse, considers recusing on his own, or refuses to recuse.

Further, I suggest it would be no great effort to include case reference numbers, and parties in the publication of details in the recusals register (the subjects of cases permitting), in similar form as already regularly appears in court opinions on the Scottish Courts website.

The routine publication of such detail and data should be standard practice of a transparent and accountable justice system so when a recusal request or decision occurs, court users, legal representatives ,the public and media know exactly why and for what reason a decision was taken.

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

 

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“Transparency is part of accountability” says Law Professor to MSPs – as General Pinochet case, failures to recuse and a judge presiding over cases defended by his own son in the Court of Session – add to calls register of judges’ interests

MSPs hear top judges need register of interests. A SENIOR Scots Law Academic – Professor Alan Paterson – has told the Scottish Parliament there is an expectation accountability applies to the judiciary as a branch of the state, and there is a need for judges in the highest courts to declare their interests.

In evidence to the Scottish Parliament’s Public Petitions Committee during the latest hearing of Petition PE1458: Register of Interests for members of Scotland’s judiciary Professor Alan Paterson of the University of Strathclyde told MSPs “..the question of a register of interests comes back to the role of the judiciary in a democracy. It is a branch of government or the state and, in a democracy, we expect the wielders of state power to have a form of accountability.”

Professor Patterson later added: “To me, transparency is part of accountability. The prime things that we require for accountability, generally speaking, are that judges give reasons for their decisions and that they identify who is making the decisions. That is part of transparency, and the question of a register of interests is part of the issue of transparency.”

MSPs also heard from the legal academic on one of the “shakiest moments” of judicial interests and recusals – in relation to the General Pinochet case – now the standard example of what went wrong when a judge in the House of Lords – Lord Hoffman – failed to declare an interest.

In responses to questions, Professor Paterson said he thought if a register of judicial interests had existed, it would have caught Lord Hoffman’s chairmanship of the Amnesty International Committee – the undeclared interest which sparked an appeal by General Pinochet’s lawyers against extradition to Spain in 1998.

Significant concerns were raised by the Committee in relation to the ‘Recusals Register’ created by former Lord President Lord Gill in the spring of 2014 – a move at the time Gill had hoped would closed down calls for judges to declare their vast interests and wealth in a publicly available register of interests.

In a key moment during the meeting, Deputy Convener Angus Macdonald MSP (SNP) raised a hypothetical scenario of a judge in the Court of Session failing to recuse himself after discovering his own son was acting as a litigation solicitor for one of the parties.

Quizzing the Law Professor, Angus Macdonald enquired: “On the issue of recusals, let me throw a hypothetical example at you. The son of a judge is the litigation solicitor for a defendant in, for example, the Court of Session, but the judge fails to recuse himself and to highlight the family connection to all interested parties. Clearly such a situation could be avoided were the decision on recusal not to be taken by the judge presiding over the hearing himself. We would look to avoid such a situation, and the register would help.”

An awkward response from Professor Paterson suggested this scenario had occurred “in the past” and that “As long as everybody knows about it and it is declared, it should not mean an automatic disqualification.” In such situations, all the parties usually know and no objection will be made.”

However, it has since emerged new evidence from the Court of Session is set to reveal more judges have failed to recuse themselves on numerous occasions where direct family members appeared in cases heard by their own parents.

In one key case which may significantly impact on calls to create a register of judicial interests, several MSPs are now believed to be aware of a series of failures by a judge to recuse himself in a case where a solicitor – acting on behalf of a law firm linked to the multi million pound collapse of a Gibraltar based Hedge Fund – appeared in front of a judge who turned out to be his own father – on multiple occasions.

The case – details of which are to be made public – has the potential to blow apart the integrity of Lord Gill’s ‘Recusals Register’ due to the sheer number of appearances by the same judge in the Court of Session – while his own son was the acting solicitor for the defenders.

Documents from the case now being studied also reveal a shocking fact – it has now been established millions of pounds of public money was paid out by a Scottish local authority to the defender’s main contractor after a ruling by Lord Woolman in January 2014.

The public cash was then to be paid to the defenders under a sub-contract agreement in an issue relating to why the case was brought to court in the first place.

However, the pursuer received not a penny despite the defenders admitting in court papers to illegal dumping of contaminated waste on someone else’s land.

Construction firms who hold contracts with numerous local authorities, and Scottish Government agencies including the Scottish Environmental Protection Agency (SEPA) are known to be heavily involved in events which led to the case ending up in the Court of Session – yet for some reason, opinions by several judges involved in hearings have not been published and are “difficult to obtain” from the Scottish Courts Service.

Tackling the issue of costs, over the issue of ensuring a fair hearing – MSP Maurice Corry (West Scotland) Scottish Conservative) asked Professor Paterson if he thought developing the recusal system in a way which required someone other than the judge hearing the case to decide on a recusal would add extra costs and delays to cases being heard in the courts.

Responding to Mr Corry, Professor Paterson said it could, but pointed out the failings of the current recusal register where little information is given away on the actual recusal and whether a judge refused to recuse himself in a case.

Professor Paterson told Mr Corry: “We have a register of how often judges recuse themselves but, as I have pointed out, we do not know how often they do not recuse themselves, so we cannot form a view on whether they have always got it right or whether there are situations in which they did not get it right.”

Mr Corry – who had earlier moved the petition be closed down at the meeting of the Petitions Committee on 29 September 2016 – also asked Professor Paterson for examples where a case may have been caught by a register of interests.

Professor Paterson replied stating “The Hoffmann case is the standard example of something going wrong.”

At the conclusion of the most recent evidence heard in relation to Petition PE1458, the Public Petitions Committee agreed to write to the Lord President Lord Carloway and the Judicial Complaints Reviewer – Gillian Thompson OBE.

Video footage and full transcript of Petition PE1458 – Scottish Parliament 17 January 2017

Judiciary (Register of Interests) (PE1458)

The Convener: Agenda item 2 is consideration of continued petitions. First, we will take evidence from Professor Alan Paterson on petition PE1458, on a register of interests for Scotland’s judiciary. As members will recall, the petitioner suggested that the committee might wish to invite oral evidence from Professor Paterson, and he has agreed to appear this morning.

Welcome to the meeting, Professor Paterson—we appreciate your attendance. If you wish to make some opening comments, you may do so for up to five minutes. After that, we will take questions from members.

Professor Alan Paterson: Thank you, convener. I am happy to answer any questions that the committee might have on this topic.

I see a register of interests for the judiciary in Scotland as an important issue but, as I have said in my written evidence, it is an issue on which I have not reached a concluded opinion. I have expressed an opinion in relation to the Supreme Court, where the balance probably tips towards the need for a register of interests. I have explained why I think that both in my written evidence and in the Hamlyn lecture.

For me, the question of a register of interests comes back to the role of the judiciary in a democracy. It is a branch of government or the state and, in a democracy, we expect the wielders of state power to have a form of accountability. It is also very important that, in a democracy, the judiciary is independent; judicial independence is a vital part of any democracy. We must therefore balance those issues of judicial independence and accountability. Indeed, issues such as recusal, criticism of judges, discipline of judges, complaints against judges and a register of interests are all areas where we try to strike that balance between accountability and independence.

The Convener: Thank you. Do you think that there is a third factor—simple transparency? That is not in conflict with independence; it is just about basic standards and reasonable expectations of openness.

Professor Paterson: To me, transparency is part of accountability. The prime things that we require for accountability, generally speaking, are that judges give reasons for their decisions and that they identify who is making the decisions. That is part of transparency, and the question of a register of interests is part of the issue of transparency.

The Convener: Do you have a view on what types of information should be included in a register of pecuniary or other interests?

Professor Paterson: As I have said, I do not have a concluded view on whether we should have a register of interests for the Scottish courts but, as far as the Supreme Court is concerned, there is the example of the American Supreme Court. Some might say that that is a slightly more political court than our courts but, nonetheless, its judges have to register their interests. They have to declare their financial interests, their shareholdings, their hospitality, what gifts they receive and what tickets to American football matches they get. All sorts of things have to be declared including membership of golf clubs and so on. At the start of their Supreme Court career, they also have to provide a detailed account of the clubs they are members of, their trusteeships, whether they are masons and all those issues. From time to time, the system throws up issues, but it works.

The House of Lords was the precursor to the Supreme Court, which started in 2009. Before that, the judges in the House of Lords formed a supreme court, and they had a register of interests. The judges who were members of the House of Lords then became Supreme Court judges. For example, we had Lord Hope of Craighead, who has since gone back to the House of Lords and is now on that register of interests. People can look up the register on the website and see what his interests are, but they could not do that when he was in the Supreme Court.

The Supreme Court has been very good at transparency, and rightly so; in general, it has been much better at transparency than the House of Lords was. It is much more open. Moreover, the proceedings are televised; when the Brexit judgment comes down on Tuesday, we will be able to see it. We will be able to watch everything happening. It just does not have a register of interests, even though the judges had one before—and will have it again if they go back to the House of Lords.

The Convener: That is interesting. Thank you.

Maurice Corry (West Scotland) (Con): Good morning, Professor Paterson. An issue that has been raised in evidence is whether a register would capture circumstances in which a conflict would make it inappropriate for a judge to hear a case. However, a judge might become aware of a conflict only when they saw a witness list and were able to identify a social relationship with a witness. Do you have any views on that?

Professor Paterson: The judicial oath and the judicial code of conduct, which are very important in Scotland, mean that a judge who knows that they have an interest—for example, a relative who is a party in a case is going to appear before them—will be expected to stand down. At its best, a register of interests would identify some conflicts and either remind the judge or alert others to the fact that they potentially have an interest, although not necessarily in the case of relatives.

One of the curiosities of the American Supreme Court is that, once or twice a year, the justices, including the chief justice, overlook a shareholding that they have. A corporation in which the shares are held comes up in litigation; they get involved in the litigation, only for somebody to suddenly remember that they have shareholdings in the corporation. That is not venal or deliberate and there is no attempt at bias; instead, someone has made a mistake and overlooked something. The strength of a judicial register is that it allows fair-minded, independent and external observers to say, “Haven’t you got a potential interest here?” and the matter can be aired before the case starts. If you do not have a judicial register of interests, everything is left to the judge and the judge’s memory. Even at the level of the American Supreme Court, the judicial memory occasionally fails—although not very often.

Maurice Corry: Thank you.

Rona Mackay (Strathkelvin and Bearsden) (SNP): Good morning. Can you expand a wee bit on examples of judicial office-holders registering their interests in connection with other roles? The petitioner has noted that in connection with the board of the Scottish Courts and Tribunals Service and you have mentioned the Supreme Court. Are you aware of any issues that have arisen for those judicial office-holders in being able to hear cases in connection with registered interests? What precedents are there that you know of in that field?

Professor Paterson: I am not sure that I have an answer to that question. Do you know what the petitioner was getting at and can you elaborate a little more on what was troubling him? Nothing springs to mind.

Rona Mackay: I think that he raised the whole subject in connection with the board of the Scottish Courts and Tribunals Service. You mentioned the similarity between those on the Supreme Court and the former law lords, so I wanted to tease out your opinion on what issues could arise from that.

Professor Paterson: I apologise for being unhelpful, but nothing on that immediately springs to mind.

Rona Mackay: That is fine.

Brian Whittle (South Scotland) (Con): Good morning. The former judicial complaints reviewer commented on the possible implications of the publication of recusal information in respect of possible conflicts of interests only becoming apparent after a case has been heard. Her view was that a register of interests could avert complaints by enabling any perceived conflicts to be addressed before or at the time when a case was heard. What are your views on that?

Professor Paterson: Let me go back to the House of Lords and the Supreme Court. One reason why I raise an eyebrow at the stance of the Supreme Court on this issue is that one of its shakiest moments was the General Pinochet affair. General Pinochet came to the UK for medical treatment and a Spanish judge using appropriate international processes arranged for him to be arrested for alleged crimes in the junta in Chile. His case then went up to the House of Lords. At relatively short notice, the membership of the panel that was to hear the case had to change and Lord Hoffmann was brought in as the next most senior judge. The fact that Lord Hoffmann’s wife worked for Amnesty International in some capacity was—we think—known by the senior law lord when they organised the panel. However, it was all done with some haste, and it is not at all clear that the panel was aware—they said that they were not aware—that Lord Hoffmann acted on a committee that raised funds for Amnesty International.

Amnesty International is relevant here because of its views on torture; it had asked to become an intervener in the House of Lords, and this was the very first case in which an intervener had been allowed. That meant that Amnesty International, although not technically a party to the case, was allowed to address the court on issues to do with torture and what had happened in Chile. Lord Hoffmann did not declare that he chaired a committee that raised funds for Amnesty International although his wife’s position, as someone who worked for Amnesty International, was known to the authorities.

Anyway, the case went ahead, and the vote went three to two against General Pinochet, with Lord Hoffmann in the majority. A little while later, General Pinochet’s lawyers discovered that Lord Hoffmann had that interest but had not declared it, and they asked for a rehearing. It had never happened before, but they got a rehearing, and the court very strongly made it clear that Lord Hoffmann should have declared the interest. Indeed, as I read it, even if he had declared the interest, the parties could not have waived it—it would have led to an automatic disqualification. That is the line that the court took, and another court had to be convened to rehear the whole case.

It all meant a lot of time being taken up, a lot of concern and a lot of bad publicity for Britain and for the House of Lords. Relations among the judges in the House of Lords were quite strained for a number of years thereafter. That one failure to declare an interest had a very substantial impact on a whole variety of issues, and I have never quite understood why the Supreme Court, knowing that lesson—which was hardly 10 years old by the time the court was set up—did not decide that it should have a register of interests.

We can have a debate about whether a register of interests would have caught Lord Hoffmann’s chairmanship of the committee, but I think that it would have, certainly under the rules under which the House of Lords now operates. It is not entirely appropriate, but if you want to see what a possible register of pecuniary interests might look like, you can look on the House of Lords website, where you will find a very detailed series of 12 headings under which interests can be recorded. Not all are appropriate for judges, but some of them certainly are.

The Convener: A second interesting point arising from the Lord Hoffmann case is not the judge’s own involvement but the spouse’s occupation. That would not go on a register, would it?

Professor Paterson: Possibly not, but, as I understand it, that was known about in the Hoffmann case.

The Convener: So that was not the issue.

Professor Paterson: That is my understanding of the case.

The Convener: That is very helpful. Thank you.

Angus MacDonald (Falkirk East) (SNP): Good morning, Professor Paterson. The example that you have just given backs up the suggestion in your written submission that the decision on recusals should not be taken by the judge who has been challenged. Would you expand on that?

Professor Paterson: Again, that is an area on which I do not have a fully formed mind. Like the author R Grant Hammond, who has written the standard work on judicial recusal, I take the view that, as far as appellate courts are concerned, there is an argument for saying that if one member of the court is challenged, he or she should not be the one that makes the decision. However, that might be the counsel of perfection. When it comes to a sheriff in a rural part of Scotland, it might be quite impractical to suggest that another person make that decision. As I have said, I do not have a concluded view on it.

I can see the case for such a move, and it would be easier at the appellate level. There are examples where courts have, when challenged on a particular interest, excluded that interest from the body deciding that interest. I can see the argument for that, but there are issues of practicality to be borne in mind.

Angus MacDonald: On the issue of recusals, let me throw a hypothetical example at you. The son of a judge is the litigation solicitor for a defendant in, for example, the Court of Session, but the judge fails to recuse himself and to highlight the family connection to all interested parties. Clearly such a situation could be avoided were the decision on recusal not to be taken by the judge presiding over the hearing himself. We would look to avoid such a situation, and the register would help.

Professor Paterson: It might—and if we are talking about a criminal defendant, it would be the High Court. Generally speaking, a relationship would be known to the parties. In the past, it was not unknown for an advocate who was a relative—a son or daughter—of a judge to appear before that judge. In a small country such as Scotland, saying that such a thing could not happen would make things a bit tough. It used to happen. As long as everybody knows about it and it is declared, it should not mean an automatic disqualification. In such situations, all the parties usually know and no objection will be made.

Maurice Corry: What consideration have you given to the potential for additional costs or delays to cases being heard if the recusal system were to be developed in the way that is proposed?

Professor Paterson: You are right to raise the issue—that is why I highlighted the practicality issues. Recusal is one of those areas in which it is necessary to have an appropriate balance between transparency, accountability and independence. We have a register of how often judges recuse themselves but, as I have pointed out, we do not know how often they do not recuse themselves, so we cannot form a view on whether they have always got it right or whether there are situations in which they did not get it right.

The test to be applied is whether a fair-minded, fully informed independent observer would think that there was a possibility of bias. It is a case not of whether the judge thinks that there is a possibility of bias, but of whether an independent, fair-minded, reasonable observer—probably a layperson—would think that there was a possibility of the tribunal being biased. It is therefore possible for a judge to take one view and an independent person to take a different one, which is why we must take a hard look at the issue of recusal.

Do I think that the introduction of a register of interests at appellate level would lead to a massive number of challenges and cause real problems? If a system were introduced whereby somebody else had to decide that, I think that it might. As I have said, I think that practical considerations might make my counsel of perfection, whereby in the ideal world somebody else would make the decision, unrealistic. I think that it is more possible at the appellate level.

Maurice Corry: Are you aware of any serious examples of cases in which the issue has been a significant problem, indicating that the setting up of such a register is necessary?

Professor Paterson: The Hoffmann case is the standard example of something going wrong. From time to time, challenges to the courts receive a degree of publicity, but I am not aware of any that were as significant as that one.

The Convener: There are no further questions. Thank you for your helpful and balanced evidence, which has given us an interesting insight into the issues.

Does the committee have a view on what further action we might take?

Angus MacDonald: Given the evidence that we have heard this morning, I think that we need to seek a further response from the Lord President, Lord Carloway. I, for one, would like to hear his views on today’s evidence, either by letter or in person, and I am particularly keen to find out his view on whether the recusal decision should not be taken by the judge who has the interest that has been challenged. Another suggestion has been put into the pot that would be well worth our consideration.

The Convener: We can look at the most convenient way for the Lord President to provide that response, because we do not want to cause unnecessary inconvenience.

Rona Mackay: We would not be re-asking the previous question. We would be going back to him with a new request.

The Convener: Is there anything else that we might do?

Angus MacDonald: There was also the suggestion that we ask the judicial complaints reviewer for her view on the evidence that has been given today. We should go down that route, too.

The Convener: Do members agree to take those actions?

Members indicated agreement.

The Convener: Again, I thank Professor Paterson for coming to the meeting. It has been very helpful.

I suspend the meeting for a couple of minutes. 09:25 Meeting suspended.

RECUSALS REGISTER – Scottish Judges are failing to disclose interests, and even when they do, some continue to hear cases where there are measurable conflicts of interest:

A number of additional cases documented on the petition webpage maintained by the Scottish Parliament aired in written submissions also provide evidence where litigants and defendants in Scotland’s civil and criminal courts are not being made aware of judicial relationships or conflicts of interest.

The frequency by which court users are not being made aware of such conflicts of interest within the judiciary appears to suggest such omissions are not happening by accident.

Misgivings on the attitude of members of the judiciary to reveal conflicts of interest are on the rise – particularly after one case revealed a senior judge – Lord Osborne – heard (and denied) the appeal against conviction of a man he had earlier prosecuted while working at the Crown Office.

Asked to comment on the matter, Lord Osborne claimed to a Sunday Mail investigation that he “forgot” he was the Prosecutor who put the man away for an alleged crime – which has been the subject of a long running and widely supported miscarriage of justice appeal.

Another case revealing the limitations of allowing judges to decide themselves whether to recuse from a case or not, was revealed in an investigation by the Sunday Herald newspaper after it emerged Sheriff Principal R Alistair Dunlop heard a case involving supermarket giant Tesco – while he held shares in the same company.

A a further investigation by the Scottish Sun newspaper revealed the same Sheriff Principal R Alistair Dunlop – held shares in a number of companies convicted of criminal offences at home and abroad, including Weir Group – subject of Scotland largest Proceeds of Crime cash seizure after the company was convicted of bribing their way into contracts with Saddam Hussein’s regime in Iraq.

Dunlop – who formerly sat on the Scottish Courts and Tribunals Service Board retired after the headlines, but was then brought back into service by the Lord President – to sit in the new Sheriff Appeals Court.

Recusals and the General Pinochet effect on proposals to require judges to register their interests:

In early 1999, Law Lords from the House of Lords who handled judicial functions now assigned to the UK Supreme Court – attacked their colleague Lord Hoffmann who failed to declare links with a human rights group before ruling in a key hearing on General Augusto Pinochet.

In the Law Lords written judgement on the Pinochet Appeal – Opinions of the Lords of Appeal for Judgement in the cause RE: Pinochet, they give their detailed reasoning for overturning a ruling by a previous panel of Law Lords which had denied the former Chilean dictator freedom from prosecution.

The Law Lords said the links between Lord Hoffmann – who sat on the original panel that ruled to allow General Pinochet’s extradition in November – and the human rights group Amnesty International were too close to allow the verdict to stand.

One of the lords who ruled in the appeal case, Lord Hope, said: “In view of his links with Amnesty International as the chairman and a director of Amnesty International Charity Limited he could not be seen to be impartial.”

At the conclusion of the latest consideration of Petition PE1458, MSPs who sit on the Public Petitions Committee agreed to write to the Lord President Lord Carloway and the Judicial Complaints Reviewer – Gillian Thompson OBE.

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

 

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