RSS

Tag Archives: transparency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE COURTS OF NORWAY:

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

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

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

What is registered?

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

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

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

  • One-off lectures and the like.

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

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

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

  • Employment in private or public sector companies.

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

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

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

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

How Norway’s Judiciary works:

Background:

Independence of the Courts

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

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

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

How independence is guaranteed

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

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

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

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

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

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

Judges cannot be dismissed

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

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

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

The Courts must have the people’s confidence

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

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

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

A brief history of the Norwegian courts

The Viking Age

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

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

The High Middle Ages

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

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

The Union period

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

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

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

The separation of powers and the Norwegian Constitution

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

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

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

Advertisements
 

Tags: , , , , , , , , , , , ,

DEPUTY CASH CONSTABLE: Top Cop who asked for her expenses in cash – fails to impress Holyrood Justice Committee with lack of answers over delays to dealing with Durham Constabulary probe of Police Scotland illegal spying scandal

DCC Rose Fitzpatrick could not explain delays over report. A DEPUTY Chief Constable of Police Scotland – who asked for her relocation expenses to be paid by cash – has failed to explain to MSPs why emails between senior officers took three months to release to a probe on activities surrounding an illegal Police spying operation connected to the unsolved murder of Emma Caldwell.

And, it emerged at a hearing on Thursday at the Scottish Parliament’s Justice sub-Committee on Policing – that Police Scotland witnesses were unable to explain why contact details for retired officers who were of relevance to the probe being carried out by Durham Constabulary – were withheld for at least two months..

Evidence from Deputy Chief Constable Rose Fitzpatrick during Thursday’s session at Holyrood was braded unbelievable and “absolutely staggering” by MSPs on the justice committee.

Margaret Mitchell MSP (Scottish Conservative) who is convener of the full Justice Committee – was unable to secure a reasonable explanation from the witnesses as to why information was not handed over to Durham Constabulary during the investigation.

Frequently during answers to members of the Committee, the Deputy Chief Constable referred to legal advice on what could or could not proceed, yet DCC Fitzpatrick remained vague throughout each response.

At one point Ms Mitchell said she “remains unconvinced at answers given today”.

Ms Mitchell later dismissed an explanation by deputy chief constable Rose Fitzpatrick regarding what the police had learned from their failings.

MSPs also criticised Police Scotland’s “overly secretive approach” to investigations into their illegal spying activities against journalists, sources & Police officers.

Reports subsequently generated by these investigations – the published – yet heavily redacted report by Durham Constabulary, and the so-far unpublished Police Service of Northern Ireland (PSNI) report on misconduct were branded as attempts to conceal information which had already been published in other areas.

Deputy Chief Constable Fitzpatrick admitted during her evidence that Police Scotland had failed four officers at the centre of the illegal spying probe, but then she went on to defend her colleague’s handling of the independent investigation carried out by Durham Constabulary’s Chief Constable – Michael Barton.

During an appearance at the Justice sub-Committee on Policing in February, Chief Constable Michael Barton told the committee he had originally been asked to carry out an investigation into the Counter Corruption Unit (CCU) following a ruling of the Investigatory Powers Tribunal (IPT).

However, it emerged in Mr Barton’s evidence the investigation was later downgraded to an inquiry.

Struggling to give acceptable responses without continually referring to legal advice, DCC Fitzpatrick admitted there had been a “significant difference of professional view” between herself and the Durham Constabulary Chief Constable on how to proceed with the probe – but that a resolution had been found after Police Scotland obtained legal advice.

A full report on the Durham Chief Constable Michael Barton’s evidence to the Justice sub-Committee on Policing can be read here: FAIR COP: Police Scotland officers fabricated intelligence in order to spy on journalists & sources in CCU spying scandal – evidence from Durham Constabulary’s Chief Constable to Holyrood Justice Committee

The 80 minutes of ‘evidence’ from Police Scotland witnesses – which included – Duncan Campbell, Interim Head of Legal Services, and Superintendent Andy McDowall, Professional Standards Department, Police Scotland. was widely criticised in the media and by cross party politicians.

The full evidence session with DCC Rose Fitzpatrick & other witnesses at the Scottish Parliament’s Justice sub-Committee on Policing can be viewed here:

DCC Rose Fitzpatrick evidence to Justice Sub committee on Policing – Holyrood 15 March 2018

Full written transcript of the hearing :

Counter-corruption Unit (Durham Constabulary Reports)

The Convener: Agenda item 2 is an evidence session on Durham Constabulary’s report on Police Scotland’s counter-corruption unit. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private briefing. I welcome Deputy Chief Constable Rose Fitzpatrick; Duncan Campbell, interim head of legal services with Police Scotland; and Superintendent Andy McDowall from the professional standards department of Police Scotland. Thank you for the written submissions. We will go straight to questions.

Daniel Johnson (Edinburgh Southern) (Lab): I begin with the central contention, which is the status of the work that was undertaken by Durham Constabulary. The first paragraph of the letter that Police Scotland wrote to Durham Constabulary on 28 July 2016 asks Durham Constabulary to agree to undertake “an independent investigation relative to the non-criminal complaint allegations identified by IOCCO.”

We have a more recent letter from the Investigatory Powers Tribunal, which sets out its query about the nature of that work. The tribunal said that you had not, in accordance with its order, referred the matter to the Durham force for investigation and asks for your response. I understand that you provided a response. However, given the language of your initial letter and the understanding of the Investigatory Powers Tribunal, it is understandable that Durham Constabulary is confused, and perhaps upset, about the ambiguity relating to the nature of the investigation and indeed whether it was an investigation. What would you say to that summary and analysis of those understandings and the communications that there have been on the matter?

Deputy Chief Constable Rose Fitzpatrick CBE QPM (Police Scotland): The first thing that I would say is that I am very grateful to Durham Constabulary for its thorough and professional report, which was produced for us under its terms of reference. The letter that you refer to asked Durham Constabulary to undertake an independent investigation “relative to the non-criminal complaint allegations”, and that was set out in the terms of reference. It should not be a surprise that, in something as important and complex as this, at particular times we should all want to ensure that we were operating in accordance with the terms of reference and, particularly importantly, that we were operating effectively under the law in Scotland.

When the chief constable of Police Scotland first asked me to become, in effect, the decision maker in this matter—that was in January 2017, and he formally appointed me to the role in February 2017—I engaged straight away with Mr Barton to discuss the complaints investigation and to establish whether progress was being made and whether there were any issues that I could assist with. When he made it clear that there were some issues for him around the terms of reference and in particular the regulations under which he was conducting his investigation, which are the Police Service of Scotland (Conduct) Regulations 2014, I of course listened carefully to that.

It is not unusual in complex matters for there to be a difference of professional view about the best way of progressing, but we were clear that he and Durham Constabulary had been asked to undertake an independent investigation only into the non-criminal complaint allegations and that our conduct regulations require other stages to take place should there require to be an investigation into the conduct of individual officers.

As the sub-committee will be aware, we had a number of discussions about that. Mr Barton helpfully came up to discuss that with me in person on 30 January 2017. I listened carefully to what he said and I felt that it was my responsibility to take legal advice. The committee will have seen the senior counsel’s opinion that we received. That made it clear that, because we were operating under the 2014 conduct regulations, we needed to go through the process that is set out in those regulations. In effect, we needed to carry out an assessment in order for me to make a decision on whether there should be a conduct investigation and, if so, who should be appointed to undertake it.

Both of those investigations were conducted independently. Durham Constabulary’s investigation was clearly independent of us and its conclusions were arrived at independently, and then there was the separate conduct investigation, which was undertaken by the Police Service of Northern Ireland, and again its conclusions were arrived at independently.

Daniel Johnson: You raised the matter of the regulations, about which we had a considerable degree of discussion when Chief Constable Barton was in front of us. I refer to the Official Report of that meeting and the discussion on the preliminary assessment. I understand the importance of that, given the different way in which complaints are made in Scotland compared to the process in the rest of the United Kingdom, but the evidence about the preliminary assessment was somewhat worrying. Darren Ellis said:

“I was initially told that a preliminary assessment had been completed. I was then told that one had not been completed. Then I was told that one had been completed and lost, and, after that, I was again told that one had not been completed. Over six to eight weeks, I tried to identify the starting point and what Police Scotland considered to be the views of the four complainants and the IPT, because an assessment of that would dictate the play. I do not believe that that work was ever done”.—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 18.]

Further to that, in responding to Chief Constable Barton about whether or not they knew even at that point, Darren Ellis said, “We do not know.” Given the importance of that preliminary assessment, which you acknowledge, is that not a deeply worrying state of affairs and a worrying report, in relation to the lack of clarity and the prospect that such an assessment had not been carried out? What would you say to that?

Deputy Chief Constable Fitzpatrick: I would say that a preliminary assessment is a very important part of the process that leads from a complaints investigation and determines whether there will be a conduct investigation thereafter. As you rightly say, Durham Constabulary was asked to do the work in July and August 2016. I believe that Mr Ellis and his team were appointed to progress the work further in November 2016 or certainly late in 2016. When they had completed their report and provided it to us in May 2017, that triggered, under regulation 10 of the conduct regulations, what is known as a preliminary assessment.

I considered the conclusions of the complaints inquiry and the result of the investigation, which had identified that there were a number of officers whose conduct, if proven, might amount to misconduct, and I agreed with that assessment. I agreed with those conclusions in my preliminary assessment and my decision was that a number of the officers should be the subject of a conduct inquiry to determine whether, on the basis of the evidence that that inquiry would look at, they should subsequently face misconduct proceedings, for example. That was the point at which the regulations provide for the preliminary assessment to be carried out, as the bridge between the complaints allegations and any subsequent misconduct investigation.

Daniel Johnson: Just to recap, we had confusion and perhaps disagreement about the status of the work that Durham Constabulary was carrying out; we had a difference of opinion about the interpretation of the regulations, as we have heard from Mr Barton; and we had, at best, a lack of clarity in Durham Constabulary about whether a preliminary assessment, which we all agree is a very important step in the process, existed. It strikes me that those are three fundamental and important issues on which there was a fundamental difference of understanding between Police Scotland and Durham Constabulary over what we can all agree is a serious and important matter. Does that not speak to a very worrying situation? How would you explain that and what lessons have you taken from that situation?

Deputy Chief Constable Fitzpatrick: It clearly is a really important issue for all of us. We have been clear that our failings in 2015, which were the subject of the report of the Interception of Communications Commissioner’s Office and the IPT judgment and order, were severe. We were also clear that our responsibility was to provide Durham Constabulary with all the support that it needed to conduct its independent complaints investigation.

When I took up the responsibility of being the decision maker towards the end of January 2017, I met with Mr Barton. We spoke on many occasions about a number of issues around the progress of his investigation and, as I said, he raised the issue of the terms of reference. We were all very conscious of our responsibilities to ensure that the process was undertaken under the conduct regulations. From my point of view, I had a responsibility to ensure that, if Mr Barton required any issues to be resolved or if he needed any material, we could resolve those along the way. I hope that you will see from the exchange of letters that we were able to do that as we went.

The issues were very complex and important. I did not find it surprising that Mr Barton and Durham Constabulary should want to progress in the way that they thought fit. I was certainly conscious of my responsibility to ensure that we were progressing clearly in line with the conduct regulations. When the moment came to determine the issue about Durham Constabulary being able to move from a complaints investigation straight into a conduct investigation, I felt clearly that I had a responsibility to take proper legal advice about that, and you will see that we took senior counsel’s opinion.

We then agreed to progress on the basis of the original terms of reference and under the 2014 conduct regulations. The letter that we received with Mr Barton’s report on 12 May acknowledges that point. He said:

“My team found your colleagues to be helpful and professional, and for that I thank you—please pass on my thanks to them. My report is not as prompt as I would have liked—there were necessary delays taking legal clarifications on the status of my enquiry. I’m glad to say that was ultimately resolved”.

He went on to say: “I have, I trust helpfully, referred further to this issue in the ‘Lessons learned’ chapter”, which is a chapter in his final investigation report.

I think that we all acknowledged that there was a professional difference of view on the issue. Ultimately, we resolved that and agreed to proceed on the basis of the terms of reference and the interpretation by senior counsel of the conduct regulations as they operate in Scotland.

Daniel Johnson: Frankly, I am struggling to reconcile what you are telling me with what Chief Constable Barton said. From the way that you have just put it, it sounds as if you left things in a very amicable way in which all parties understood one another. However, in his evidence, Chief Constable Barton characterised Police Scotland, and in particular the legal department, as acting in an “overly legalistic” and “risk averse” way. The conclusion that one would draw from that is that procedure was getting in the way of looking after the wronged police officers. If everything was so amicable and nothing was wrong, why did Chief Constable Barton give the evidence that he gave to this committee?

Deputy Chief Constable Fitzpatrick: I have reflected the fact that we had a significant difference of professional view, which was resolved by the taking of legal advice and an agreement that we proceed on the basis of the original terms of reference that Durham Constabulary was given and the two sets of legal advice that we had received from senior counsel. Mr Barton’s letter of 12 May reflected that. I have spoken about and read from his letter the point about the lessons learned part of his report.

The committee will be aware that we have been keen to ensure that all of the lessons are learned from each of the individual independent reports that we have had, from the IOCCO report and the IPT judgment and order through to Her Majesty’s inspectorate of constabulary in Scotland’s 39 recommendations in its assurance review of the CCU, right through to the Northumbria Police, Durham Constabulary and PSNI reports. There has been learning for us in all of those that sits alongside the actual findings of the investigations.

A huge amount of work has already gone on, certainly on the 39 recommendations from the HMICS review. We are clear that, where there are things to be learned about the processes, such as those with Durham Constabulary, we will take those on. I do not for a moment suggest that, in our many conversations and exchanges of letters, Mr Barton did not raise points with me where he felt that we could provide something to him or perhaps provide a little more support to his team. As soon as I became aware of those issues, we resolved them as we went along. As I say, it was a complex matter that went on for a long time, so I am not surprised that, given that all of us were determined to proceed in the right way, there were differences of opinion. As I believe you can see from Mr Barton’s final letter to us, ultimately, they were resolved by the way that we agreed to proceed.

The Convener: Deputy chief constable, you are the disciplinary authority for Police Scotland. On receipt of the IOCCO report, could you have decided that there would be no conduct proceedings?

Deputy Chief Constable Fitzpatrick: I suppose that, technically, that would have been the case. I was not the disciplinary authority then. In fact, I was asked by the chief constable to be the disciplinary authority in this particular case only in early 2017. I know that the IOCCO determination, which was received in November 2015, was followed by complaints from four complainers in, I believe, March 2016. Those complaints were referred to the Crown Office. At that point, therefore, we had complaints that we were bound to ensure were investigated. My understanding is that, when the complaints were received, they were referred to the Crown Office to establish whether there was any criminality in the allegations. It was determined that there was no criminality, but at that point I understand that it was agreed with the complainers that the complaints would be pended until the IPT hearing, which took place in July, followed by the IPT judgment and order in August. It was at that point that the complaints were referred to Durham Constabulary, which was asked to conduct its independent complaints investigation.

The Convener: What was the status of the individuals who were interviewed in the investigation or inquiry that you asked Durham Constabulary to do? Were they witnesses, suspects or accused?

Deputy Chief Constable Fitzpatrick: Under a complaints investigation, there would have been complainers—there were four complainers in this case—and witnesses, in relation to establishing the substance of the complaints and the recommendations relating to the complaints. There are issues around conduct investigations. Such investigations are clearly defined in the conduct regulations, which put in place particular processes and procedures and, in some cases, safeguards in relation to officers who may become what we call subject officers—in other words, officers who are subject to a conduct investigation.

The Convener: The legal opinion talks about that and the position of challenge, were that to happen. Conversely, given the direction that you had given Durham Constabulary, was there the potential for anyone who was interviewed to have been compromised if they were subsequently to become a subject officer or an accused?

Deputy Chief Constable Fitzpatrick: That was never raised with us by Durham Constabulary. There will always be cases in which, before a determination is made, people may be spoken to, but it then becomes clear subsequently that perhaps they need to become a subject officer—that is, their conduct needs to be investigated because it is considered that there may be a possibility of misconduct or gross misconduct. It is the preliminary assessment that makes that decision. In this case, as a result of its investigation, Durham Constabulary identified a number of officers in relation to whom, in its view, a decision needed to be taken as to whether their conduct needed to be investigated. That was the preliminary assessment point that led to the conduct investigation.

The Convener: Just for completeness, did Durham Constabulary interview the people whom it subsequently said could be subject to disciplinary proceedings?

Deputy Chief Constable Fitzpatrick: I do not believe that it did.

The Convener: What, if anything, should this committee read into the fact that ex-DCC Richardson did not co-operate with the Durham Constabulary inquiry?

Deputy Chief Constable Fitzpatrick: I really cannot say, I am afraid. The inquiry was independent and I had no role; the organisation would have provided details of retired officers to Durham Constabulary.

The Convener: Nonetheless, in this instance you are the disciplinary authority and Mr Richardson had been the disciplinary authority. Would you not have anticipated full co-operation from your predecessor?

Deputy Chief Constable Fitzpatrick: Durham Constabulary was conducting two parallel non-criminal complaints investigations, one on our behalf and the other on behalf of the Scottish Police Authority. Any issues concerning senior officers would have been part of the senior officer complaints investigation, which came under the auspices of the SPA.

The Convener: Nonetheless, Mr Richardson could have been a witness or, if he was a serving officer, subject to investigation. Do you have no view on his unwillingness to co-operate?

Deputy Chief Constable Fitzpatrick: I am simply saying that, if approaches were made to him, I am not aware of what the conversation was. I am really not in a position to comment.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP): I want to be clear on the sequencing. We have Chief Constable Barton submitting his investigation conclusions on 12 May 2017; that is the end of one chapter, it seems to me. The next step, as you have described it, is your role in doing a preliminary assessment as to whether a misconduct inquiry would have to happen. In coming to your preliminary assessment view, what input—separate from its submission of a report—would there have been from Durham Constabulary? Would you simply have gone back to clarify points, or was Durham Constabulary out of the picture, with no role in the preparation of the preliminary assessment beyond the fact that it had submitted a report that you would be drawing on?

Deputy Chief Constable Fitzpatrick: I am very fortunate that I have a conduct expert to my left, but I will try to answer that myself and then hand over to Superintendent McDowall, who will put me right on anything that I may leave out.

Durham Constabulary’s independent complaints investigation was complete and entire in itself. It came to the conclusion that a number of the complaints were upheld, that some were partially upheld and that others were not upheld. It took the view that there was a prima facie case involving a number of officers, which, if proven, might lead to a finding that their conduct was in fact misconduct and in breach of the standards of behaviour that we expect of professional police officers.

My decision making was formed with support—in this case, that support was an assessment of the particular matters that came out. We separate out the complaints issue, we look at the individual officers, and then I make a decision on the basis of what is provided to me—in this case, the Durham Constabulary report—as to whether there is a prima facie case that requires to be investigated. Durham Constabulary spoke about eight officers originally. Looking at the case in detail, I determined that, for seven of those officers, there was a prima facie case, that their conduct, if proven, could amount to gross misconduct, and that, therefore, an independent misconduct investigation should take place. That was based on the Durham Constabulary report.

Stewart Stevenson: In relation to how you came to your conclusion, you used the phrase “with support”, and that is really what I am focused on. What was that support? Where did it come from? Did it involve going back to Durham Constabulary to say, “You have come up with this charge sheet,” and to get further information, so that the preliminary assessment could be as complete and reasonable, in all sorts of ways, as would be necessary? I just want to know whether, after 17 May, Durham Constabulary was no longer part of the decision-making process, or whether it was still advising you.

Deputy Chief Constable Fitzpatrick: I did not go back to Durham Constabulary other than to thank it for its report. I do not know whether any of my colleagues in our conduct world felt that it would have been appropriate or helpful to do that at that stage.

Superintendent Andy McDowall (Police Scotland): Mr Stevenson, there is not much more that I can add to the deputy chief constable’s interpretation of how we formulated that regulation 10 preliminary assessment. The Durham Constabulary report was conclusive, and it was the information contained within that report that allowed us to formulate an assessment so that we could progress matters under the conduct regulations, as required. It was the Durham Constabulary report that the regulation 10 preliminary assessment was based on.

Rona Mackay (Strathkelvin and Bearsden) (SNP): I do not want to labour this too much, but can I ask you a bit more about the terms of reference? I feel that I need clarification, and I am still quite confused by it all. Chief Constable Barton said that it was three to four months into his investigation when he was told it would not be an investigation, that he did not have full investigatory powers and that it would instead be an inquiry. Is that when you took over, Deputy Chief Constable Fitzpatrick—after the preliminary work had been done and you decided to take legal action? I am puzzled as to why the original remit from the chief constable of Police Scotland did not take that approach at the outset.

Deputy Chief Constable Fitzpatrick: As I said earlier, I did not become the decision maker until the end of January 2017—I was appointed officially on 14 February 2017. The terms of reference were set out in a letter to Durham Constabulary from the chief constable of Police Scotland on 4 August 2016. Durham Constabulary began work at that point and I first engaged with Mr Barton in January 2017 when the work had been under way since August.

Rona Mackay: That is what I am trying to determine. Was it after you had sight of that work that you decided that a different procedure needed to take place? Was it at that point that you said, “I need to take legal advice”?

Deputy Chief Constable Fitzpatrick: Those were simply my initial conversations with Mr Barton. I spoke to him at the end of January, we had a meeting on 30 January 2017 and we had an exchange of letters about the terms of reference. Until then, I was not aware that there was an issue or a difference of view about the terms of reference and the extent of his inquiry; of course, as soon as he raised that with me, I had to listen very carefully. Then I determined that I needed to take some legal advice on the application of the conduct regulations in Scotland to the particular circumstance, and that is when I did that.

Rona Mackay: When you were liaising with him, how long was it before you realised that you would need to take advice?

Deputy Chief Constable Fitzpatrick: We had a number of conversations and we had an exchange of letters in February. Then I received senior counsel’s opinion on 21 March 2017. It was sequential: we talked about the terms of reference, we realised that we had a different professional view about the issue and we discussed it. I believe that Mr Barton said that he took legal advice—my recollection is that he mentioned that to me—and we also took legal advice. Importantly, I was very conscious of my responsibility to be open-minded about the views that he had come to, but also to make sure that we were proceeding on a very sound legal basis. If I am very honest, no legal advice was taken at the time in relation to the 2015 issues, when IOCCO and IPT determined that we had acted unlawfully, and I was very keen to make sure that we were operating on a sound legal basis, and hence taking legal advice.

I actually took two different sets of legal advice because, during those conversations and as we were getting the first set of senior counsel’s opinion on the Scotland regulations, Mr Barton made a specific proposal about how he might proceed under the regulations. I asked for that to be put to senior counsel to look at specifically because, again, I wanted to be open-minded about whether that was an appropriate—or, indeed, a better—way to proceed. I took legal advice on that, so that we could go down that road if that was appropriate for all concerned.

However, the second set of senior counsel’s advice, on that very specific point, was that we could not be advised to go down that route—that, in fact, the Scotland regulations would not allow us to do that while keeping within the regulations, which have the force of law. I felt that it was my responsibility to make an informed decision, based on two sets of legal advice that was very specific on those points.

Rona Mackay: I take it that you stand by that decision today, and that you believe that you did the right thing by taking that advice.

Deputy Chief Constable Fitzpatrick: I believe that I did, yes.

Margaret Mitchell (Central Scotland) (Con): Good afternoon. Mr Barton said:

“When I was given the inquiry, it was made clear to me by the chief constable that we were being asked to do an investigation. That means that we can investigate, access all the documents and interview people, so that we can make a recommendation on whether or not there may be misconduct.”—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 2.]

As part of that, he said that he wanted to interview senior officers and, before that, he wanted to see a chain of emails from those senior officers. He was not allowed to do that; the reason given for that was legal privilege. Would you like to comment on that, Mr Campbell?

Duncan Campbell (Police Scotland): Good afternoon, Mrs Mitchell. Thank you for the opportunity to comment on that. I was interviewed by Mr Ellis in December 2015 and January 2016, as part of the investigation. I was asked to provide factual information, which I did. That essentially related to my interaction with this committee’s predecessor committee between December 2015 and January 2016. I was also asked to provide a chronology and a copy of information that passed between me and the IPT in the period immediately following the hearing on 22 July.

Mr Ellis also asked me to provide additional information around the factual material. I indicated to him that I took the view that the material that he was looking for was legally privileged and that I would need to get the chief constable’s permission before privilege was waived; that privilege was vested in my client, who was the chief constable. The matter was not immediately pursued further with me. When it was subsequently pressed, I offered the chief constable advice about his entitlement to waive privilege as he saw fit. I also indicated to him that, if he was minded to do that, he might wish to avail himself of independent legal advice on whether to waive privilege. I did not withhold any material that Mr Ellis asked for and which I was in a position to provide to him.

Margaret Mitchell: What aspect of the chain of emails did you think was covered by legal privilege? Was it every single bit of the emails between those senior officers?

Duncan Campbell: I have seen Mr Barton’s evidence in that regard. I am not in a position to comment on emails passing between senior officers. I was only able to comment on material that was held in our own file, which concerned matters that were put to me for advice.

Margaret Mitchell: Should you not have made that distinction? Should you not have said, “On the basis of the emails I hold in my file, my advice is that legal privilege kicks in, but of course you can see any of the emails in a chain of correspondence that the senior officers have had”?

Duncan Campbell: That was not the inquiry that was made of me by Mr Ellis. I do not know whether he made that inquiry of anybody else, but he did not make that inquiry of me.

Margaret Mitchell: He was quite clear that he asked to see the emails that people sent to each other. I think that that was fairly reasonable. Given that the remit was, as Mr Barton said, to

“investigate, access all the documents and interview people, so that we can make a recommendation”,

Mr Ellis had to see everything. Mr Barton also said quite clearly that

“It is legitimate for a senior police officer or a member of the Scottish Police Federation to sit down with their solicitor and to be absolutely sure that those conversations are sacrosanct.—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 11.]

That is a given. That is not what we are talking about here.

Deputy Chief Constable Fitzpatrick: I may be able to help. That issue came up with Mr Barton in our discussions in January and February—in fact in February, as I recollect; we also had an exchange of letters about it. I have just noted that, from my letter of 22 February 2017, I was able to confirm to him that we were waiving legal privilege in relation to the briefing documents that he required for his investigation.

Another issue related to access to a telecommunications product. As I said, when in the course of our conversation Mr Barton raised one or two issues with me that he felt that we needed to progress, I was able to resolve them, as far as that was possible. I think that that has a bearing on the point that you were just asking about, Mrs Mitchell.

Margaret Mitchell: It most certainly has. It took three months—the issue goes right to the heart of the criticism that the legal department was risk averse, that it was not open and that it was not transparent. Given the benefit of the analysis that has been made and the fact that the correspondence was subsequently released—albeit three months later—would you care to reflect now as to whether you might do things differently in future?

Duncan Campbell: The correspondence that I sent to Mr Ellis was sent sooner than the date that Deputy Chief Constable Fitzpatrick refers to in terms of the briefing note.

As far as being risk averse is concerned, my role in providing advice to Deputy Chief Constable Fitzpatrick and to colleagues in the professional standards department is to be risk aware, rather than risk averse—in other words, to be aware of the risks that would arise if certain courses of action were followed and to offer advice on that premise.

Margaret Mitchell: Your advice was to not release.

Duncan Campbell: No. With respect, my advice was not against releasing—it was not to not release. My advice to the chief constable was, “It is your privilege and it is for you to determine whether to waive it. It is not for me to waive the privilege on your behalf”.

Margaret Mitchell: So what took three months? If you looked at it and the request was made, I would have thought that you would have passed on that information. Did it take you three months to come to that conclusion? Who made the decision ultimately that the information would be released?

Duncan Campbell: It was not a decision that was taken by me. I initially reflected the situation back to Deputy Chief Constable Livingstone, the day after I had seen Mr Ellis. I explained to him that, in part, a request had been made for access to privileged material. It was suggested to me that that might be quite an unusual request and that I should reflect that back to Mr Ellis, which I did the following day.

Margaret Mitchell: Why did it take three months to release these emails? They were subsequently released.

Deputy Chief Constable Fitzpatrick: As I said, when we had our discussions at the end of January and in February, this was one of the issues that Mr Barton raised with me. I was able to confirm to him that, having had a discussion with the chief constable, we would be happy to provide the briefing documents that he was requesting.

Margaret Mitchell: Perhaps I can put this another way: is there a problem with communication? It took three months, but you have still not told me why. This investigation should have been going smoothly, and these emails should—as it turns out—have been released. They were subsequently released, but why did it take three months to do so?

Deputy Chief Constable Fitzpatrick: I came to the issue at the end of January and the beginning of February. I was appointed as decision maker on 14 February, and I was able to confirm to Mr Barton on 22 February, as a result of his raising the matter with me, that we would be providing him with the material.

Margaret Mitchell: Are you saying that you only came to this late and that, in other words, it was somebody else’s problem?

Deputy Chief Constable Fitzpatrick: I am saying that as soon as I became aware of the matter, I sought to have it resolved, as it was.

Margaret Mitchell: Are there lessons to be learned?

Deputy Chief Constable Fitzpatrick: There are indeed. As I have said, the lessons that are set out in Mr Barton’s report and our discussions with him along the way form the basis of a significant amount of organisational learning for us not only in relation to the original matters of the IPT and IOCCO, but subsequently.

Margaret Mitchell: With respect, we have had such platitudes before. You have come here today, fully aware of the evidence that was given two weeks ago about this gap, and you are seeking to reassure us that things have moved on and that everything was quite amicable at the end. However, that is not the case. No criminality was found, and I am afraid that what we are hearing today merely sounds inept.

I want to ask about data protection and the request for the addresses of the retired officers, which was refused. Whose decision was that, and what was the reason for the refusal?

Deputy Chief Constable Fitzpatrick: Shall I take that?

Duncan Campbell: Yes.

Deputy Chief Constable Fitzpatrick: As we know, every organisation has responsibilities with regard to data, and they are set out in data protection legislation. As retired officers are effectively members of the public, we have a responsibility for their data, including their personal details. Again, Mr Barton raised with me the point that this seemed to be taking some time—

Margaret Mitchell: Can I stop you there? We were told at our previous meeting that

“lawyers in Police Scotland said that we were not allowed to know where those retired officers lived”.—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 11.]

We are talking not about a member of the public or somebody with an interest, but about the person in charge of the investigation. As it is really a legal question, I feel that I have to ask Mr Campbell about it.

Duncan Campbell: I first became aware that access to retired officers was an issue when I was shown the letter from Mr Barton dated 7 February, which I think is before you. I was shown the letter either that day or possibly the next. When you look at the Official Report of Mr Barton’s evidence on 22 February, you might form the impression that I or one of my colleagues had already given some advice or instruction that home addresses were not to be released.

I hope that I can reassure you that that was not the case. We had not had any involvement in the matter until receipt of the letter of 7 February. I discussed it with Deputy Chief Constable Fitzpatrick; the next day—I think—we discussed a number of matters, which were reflected in her letter of 13 February and one of which was the way in which we proposed to resolve the issue of access. We wanted to facilitate access, but to ensure that we did so in a lawful and proportionate way.

Margaret Mitchell: You say that you did not give legal advice, but was Mr Barton told by someone else that it was legal advice? If so, that was erroneous, given that two months later he got the information about where the retired police officers lived. How was the matter resolved?

Deputy Chief Constable Fitzpatrick: In my letter to Mr Barton of 13 February, there was an undertaking to resolve it—in fact, by that stage, it was in hand. We were doing what we were required to do in relation to personal information, which was to contact the individuals and ask them whether they were happy for us to provide that information—that is, their contact details—to Durham Constabulary.

Margaret Mitchell: Finally, on professional standards, Mr Barton said that he moved as fast as he could,

“and the only times that we paused were when we asked for preliminary assessments. At any time in our inquiry, the officers in the professional standards department could have done a preliminary assessment. If they had done that, they could have switched the process, even under their arcane rules, into an investigation, and they chose not to do that”.

Mr Barton then makes the main point when he says:

“We gave them ample opportunity on a number of occasions to switch to a full investigation. We were balked in speaking to some people because we were not given the addresses and we were balked because we were not allowed to see what were assessed as being legally privileged documents, although they were not. I just wanted to comment on timeliness.”—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 14-5.]

There seems to have been a five-month delay in this process. Do you wish to respond, Mr McDowall?

Superintendent McDowall: I must confess that I am somewhat perplexed as to how we could suddenly jump from a complaints investigation straight into a conduct investigation. We have already discussed the regulation 10 preliminary assessment process, and as the conduct portfolio lead for Police Scotland, I would point out that the regulation 10 process follows on from an appointment of an investigating officer by the deputy chief constable to investigate misconduct matters. Legally in Scotland, we are not allowed to investigate police misconduct unless that process has been undertaken. As I mentioned to Mr Stevenson, the basis on which we formulated the regulation 10 preliminary assessment was the concluded—and conclusive—Durham report. We could not have appointed an investigating officer without having gone through that legal regulatory process.

Margaret Mitchell: I remain unconvinced by these explanations, and I am somewhat concerned that, despite areas being put into in the public domain at the committee’s previous meeting, we still do not have any answers. Perhaps you will reflect on that as we move forward.

Ben Macpherson (Edinburgh Northern and Leith) (SNP): Good afternoon. Going back to the legal opinions, I believe that Deputy Chief Constable Fitzpatrick said that decisions were made on 30 January with regard to the terms of reference. Was that when the decision to seek senior counsel was made?

Deputy Chief Constable Fitzpatrick: I am afraid that I cannot recall exactly when the decision was made.

Ben Macpherson: Would it have been thereabouts?

Deputy Chief Constable Fitzpatrick: My first meeting with Mr Barton was on 30 January and we were talking about those issues at that point.

Ben Macpherson: In following up that meeting, I want to ask two real questions. First, why was senior counsel rather than internal legal advice sought? What was the position in that respect? Secondly, was Mr Barton content and in agreement with the process of seeking senior counsel?

Deputy Chief Constable Fitzpatrick: First of all, I wanted to take the best possible advice to make an informed decision about this. Internal legal advice will, of course, be part of that, but senior counsel’s advice will relate to very specific points, and I think that it is common for most organisations and many police services to seek senior counsel’s advice on particularly important or complex matters. I am not suggesting for a moment that I could not have had in-house advice—in fact, I was receiving that advice where that was appropriate—but it is called “senior counsel” for a reason and I wanted to make sure that we were getting the best possible focus on the matter.

I certainly discussed that with Mr Barton. I made him aware on both occasions—and when he came back with his specific proposal, too—that we were taking advice, and I was very frank in discussing the content of that advice with him. I know that Mr Barton told the committee that he took legal advice himself and ultimately, as our exchange of letters suggests, and as he mentions in his final letter to us after his report was received, we agreed to differ. However, we agreed to proceed on the basis of the legal advice that we as Police Scotland had received.

Ben Macpherson: But there was no objection from him at the time about your instructing senior counsel.

Deputy Chief Constable Fitzpatrick: I do not think so—I do not recollect that at all. We had a number of conversations about the matter. We knew the points on which we differed professionally with regard to our interpretation of the Scottish regulations, and I hope that I was very open with him about what I intended to do.

Ben Macpherson: I ask the question simply because of Mr Barton’s position that Police Scotland was—to use his phrase—“overly legalistic” in the process. I know from having instructed senior counsel in a previous role that it can take longer and that that perhaps led to the time delay. Moreover, it is often the case that different legal opinions are sought from different advocates. Was that ever considered?

Deputy Chief Constable Fitzpatrick: I am trying to think whether I specifically considered that—I do not think so. As you have suggested, I was quite mindful of time; I asked for senior counsel’s view to be taken, but I did not specify which senior counsel it should have been. I am not a lawyer myself. In fact, because the two matters were taken so closely together, it was for the benefit of time that we decided to take opinion on the general point and on the very specific proposal.

Ben Macpherson: Paragraphs 51 and 52 of the first legal opinion, in particular, state the risk in senior counsel’s view of judicial review. Was Mr Barton receptive to that risk and did he understand it?

Deputy Chief Constable Fitzpatrick: He must have been receptive, because we ultimately agreed to proceed on the basis of my decision to follow the legal advice that I had received. I was very clear that this was not some abstract matter and that Police Scotland had already been judicially reviewed on a very similar issue, so this was not about having some abstract discussion of what might happen.

Ben Macpherson: And the decision to take legal opinion and the opinion that was given were not questioned or dismissed by Mr Barton.

Deputy Chief Constable Fitzpatrick: We discussed it, and I did not find Mr Barton to be dismissive at all. I hope that he did not find me dismissive, either. We were two professionals who both appreciated the importance and complexity of this particular issue; we were both very determined to do right by the issue and the people involved, particularly the complainers, and to take things forward in an effective way. We agreed to differ. As I understand it, we both took legal advice and then agreed to proceed on the basis of the legal advice that we had received.

Ben Macpherson: The debate over the interpretation of the 2014 regulations prolonged the investigative process, and it has been stated that that had an adverse effect on the individuals involved. Do you accept that?

Deputy Chief Constable Fitzpatrick: I have accepted that, and I had the opportunity—for which I was grateful—to apologise in person to three of the four complainers on 1 March and in a letter to all four complainers on the same day not only for the failings that occurred in 2015 but for the subsequent impact on them and their families. I am mindful of that, and I know that Mr Barton was very mindful of it. The discussions that we had when I formally took this on in February and March led Mr Barton to conclude his investigation and his report was with us on, I believe, 12 May.

Ben Macpherson: Being mindful of all of that, what steps do you think will need to be taken to avoid any confusion with regard to the application of the 2014 regulations to any future inquiries or investigations that need to be carried out?

Deputy Chief Constable Fitzpatrick: As a result of the discussions that we had, particularly with Mr Barton and the Durham Constabulary investigation team, not only did we get a very thorough, diligent and professional report from them, which enabled us to progress the processes, but, as you will recall, we went on to develop terms of reference for the PSNI to carry out the conduct investigation. I felt that it was important that we were very clear about those, and we both understood exactly the legislative framework that we would be operating under. The PSNI was happy with that. My personal learning was to take my discussions with Mr Barton on the terms of reference and the difference of view that had arisen into the very early discussions with the PSNI to ensure agreement on its terms of reference.

Ben Macpherson: So despite the admitted delay and the potential damage that that could have had, there has been a constructive outcome to this with regard to future investigations.

Deputy Chief Constable Fitzpatrick: Indeed. We have a lot of lessons to learn. As I have said, we had already put that into practice in asking the PSNI to do the work that it has done.

Daniel Johnson: I seek a technical clarification on the nature of this disagreement. My understanding is that, in Scotland, we separate the complaint from the subsequent investigation, and Police Scotland’s contention is that the investigator in the investigation cannot have had any previous involvement in the handling of the complaint, as that would undermine the requirement in the police regulations for the investigating officer to be impartial. Am I correct in understanding the crux of this disagreement?

Deputy Chief Constable Fitzpatrick: I understand, too, that that was the crux of the disagreement. That is what formed the basis of the legal advice. As I think I said in answer to Mr Macpherson, this was not an abstract issue for us; we had previously been judicially reviewed on the point and had had to concede it.

Daniel Johnson: That was helpful. Thank you.

Liam McArthur (Orkney Islands) (LD): A little like other members, I am struggling a bit to reconcile the evidence that we had on 22 February from Chief Constable Barton, which was of the moment and reflecting back on what had happened. At that stage, he still felt moved to make some more serious criticisms than the more reassuring tone that you have sought to strike today. That is probably material for the committee in so far as it tends to suggest that, when it comes to lessons learned, you are more reassured than Chief Constable Barton and his colleagues are. I will leave that hanging there for the moment.

On the basis of the evidence that we have had, a couple of things have leapt out at me. It is staggering that access to retired officers was not identified as a potential issue and resolved, not in terms of each case, but in terms of handling, and agreed with Durham when the investigation was initiated. I cannot understand why that almost came as a surprise and out of left field after Durham had been asked to undertake an investigation. Is it not standard procedure? At some stage, there will undoubtedly—almost inevitably—be a request to make an approach to retired officers. How would Police Scotland respond? I can understand why you might need to seek permission but, for the life of me, I cannot understand why you would not anticipate that arising in the early stages—not just at some point, but in the early stages—of the investigation.

Deputy Chief Constable Fitzpatrick: You have quite rightly identified an area of learning for us in terms of preparation for these things. It is something that we took into our discussions with PSNI about what it would need in order to facilitate its subsequent independent conduct investigation.

Liam McArthur: Again, in passing, some of what Chief Constable Barton was referring to when he talked about an attitude and a lack of transparency was reflected in the level of redaction in the reports that were handed to us. I entirely understand and respect the requirement to redact reports of this nature, but it seemed that the extent of the redaction, including of information that was in the public domain, spoke to an approach that Chief Constable Barton was moved to suggest was overly secretive.

I turn to the issue of the pastoral care. There has never been any disagreement around the fact that the four individuals concerned were gravely wronged, as Chief Constable Barton said. You have said that you were determined to do the right thing by the complainers. As I understand it, the IOCCO reported to Police Scotland in July 2015. Chief Constable Barton then suggested that the first contact that was made by Police Scotland with the four was in February 2016. Having been made aware of IOCCO’s concerns, why on earth did it take Police Scotland seven months—or whatever it was—to approach those affected? DCC Fitzpatrick, I appreciate that this predates your involvement but, again, I find that absolutely staggering.

Deputy Chief Constable Fitzpatrick: I am afraid that I do not know why it took so long. While we are on the subject of learning, having been asked to become the decision maker in this officially on 14 February, although I was in discussions with Mr Barton in late January—and we agreed whole-heartedly on this—I was determined to offer to meet the complainers as soon as possible and to offer them what I described in my letters to them as a whole-hearted and unreserved apology. I touched on this briefly earlier. That apology was not only for the failings in our processes and procedures around the communications data that the IOCCO and IPT had identified in 2015, but for the impact on them and their families at the time of those acts and since then. I was very grateful that three of the complainers agreed to meet me and I completely understood that the fourth did not choose to do so.

Liam McArthur: My understanding is that the apology was welcome and acknowledged for being as fulsome as you suggest but, just to get this clear, you were apologising for what happened and the impact that it had. Was it also an apology for the lack of on-going engagement and seeming concern for the wellbeing of the existing and retired officers throughout this process?

We have heard from colleagues of yours. In a number of evidence sessions, Deputy Chief Constable Designate Livingstone has made great play of the priority he attaches to the wellbeing of officers and of staff. That was glaringly absent throughout the process, and its absence is potentially on-going. I do not know the outcome of the discussions that you have had but I presume that the impact is also on-going. Certainly the complainants do not feel that the matter has been resolved for them, so I assume that Police Scotland is committed to continuing to work through whatever might bring about a resolution, subject to the willingness on the part of the complainants to engage.

Deputy Chief Constable Fitzpatrick: One of the striking things for me—and I think that this is the case for anybody who sits down with someone—when I spoke individually to the three complainers who agreed to meet with me on 1 March 2017, was to listen to them and to hear what the impact on them had been. Of course, I intended to apologise to them, and I did apologise to them directly and individually, but I also heard about the impact on them and on their families.

The work on wellbeing that Mr Livingstone has spoken to the committee about certainly needs to include our processes and procedures for serving officers, whatever their status and whatever the circumstances of our relationship with them in the future.

Liam McArthur: To be clear, that meeting on 1 March is not an end point. Notwithstanding the fact that the apology that was being sought was offered at that stage, is there an on-going commitment to engagement if that is felt to be necessary by those involved?

Deputy Chief Constable Fitzpatrick: Yes. Absolutely, if indeed it is. As you will know, a number of the complainers have retired, but we still have a responsibility to any of them who have not retired.

One of the most significant points of learning for us was probably the fact that there was a very long gap, which you have identified. With Durham Constabulary’s help, I was able to meet the complainers at the beginning of March and that was an important part of what I felt was my responsibility at that time.

The Convener: DCC Fitzpatrick, given the profile and seriousness of the issue, which Police Scotland has acknowledged, a lot of people will be astonished that the outcome is that you have learned things but no one has been culpable in any way. You have a range of disposals. You could reprimand someone or you could caution them. You could send them for additional training. There has been none of that. Where are the individuals who have been involved in this?

Concern has been expressed to this committee that, although these people have been acquitted—and I readily accept that—they are now in more promoted posts. The reason I raise that is because there are genuine concerns about reputational damage and the signal that that sends out. Can you comment on why, after all this, no one even gets spoken to?

Deputy Chief Constable Fitzpatrick: That is not quite the case.

The Convener: What disposals were used then, please?

Deputy Chief Constable Fitzpatrick: Seven officers were the subject of the PSNI’s independent conduct inquiry. The PSNI investigation report found that a number of allegations were proven, on the balance of probabilities, but there was no evidence of wilful acts of misconduct. It also described how, although there was no evidence of wilful actions, there was clearly recklessness, and that chimed entirely with the IOCCO and IPT findings that we had been reckless as an organisation. The PSNI found that some of those individuals had been reckless in their own individual behaviour and it also identified failures in leadership systems and processes.

Of the seven officers, four were subject to what we call improvement action, which is a disposal aimed at focusing on why they had behaved in that way and them taking action to make sure that it did not occur again. The PSNI also determined that three individuals were peripheral—that is my word—to these issues, and no further action was taken. For four of the individuals, therefore, action plans were put in place to make sure that their future actions are not likely to lead to adverse outcomes.

The Convener: How many of the seven have subsequently been promoted?

Deputy Chief Constable Fitzpatrick: I am afraid I do not have that information, convener. I am happy to provide it to the committee if it would help.

Liam McArthur: Just following up on that, earlier we discussed the lack of access to officers who are now retired. I presume that any improvement actions cannot be applied to those that have retired. Did the PSNI report shed any light on that?

You have talked about reckless behaviour and a lack of leadership. One would assume that something more than improvement actions would be required in the event of reckless actions, so did the PSNI have anything to say about the behaviour and involvement of retired officers and whether, had they still been in the force, more serious measures might have been necessary and appropriate in the circumstances?

Deputy Chief Constable Fitzpatrick: Yes, it did. The PSNI observed that it had not been able to engage with officers who had retired because, of course, the conduct regulations fall when an officer retires from policing. The PSNI observed that, on the basis of what it knew, it felt that other action might have been appropriate. Of course, it also observed that it had not been able to engage with or interview those officers. At that stage, that was a judgment as opposed to something that it could say to us was a matter of fact.

Liam McArthur: Is that then something that you can take learning from, even if you can take no action because of the status of the officers as being retired? Are there lessons to be learned from that going forward?

Deputy Chief Constable Fitzpatrick: Yes, to the extent that it is important to learn from all of these things. The issue here of course was the conduct regulations, which differ from those in England and Wales and under which there is no way of compelling individuals who have retired to engage with a conduct investigation. In fact, the conduct investigation has no locus for them at all because they are no longer serving as police officers. That particular point is a regulatory issue and not something that we have control over.

Liam McArthur: Given the role of this Parliament in looking at where regulation is and is not working, would you support our looking at that? Is it a deficiency in the way that the regulations are structured that, by dint of retiring, an officer can escape any sort of sanction, not for criminal offences, but for serious misdemeanours on their part?

Deputy Chief Constable Fitzpatrick: There is a range of views about that in policing. The 2014 conduct regulations have been in place for more than four years. There is learning about the regulations, just as there has been organisational learning for us all the way through in other matters in relation to CCU and comms data and so on. I think it is very wise to keep these things under review.

The Convener: Can you tell us why you cannot publish the PSNI report?

Deputy Chief Constable Fitzpatrick: Again, I look to Superintendent McDowall to keep me right on this, but my understanding of the conduct regulations is that, under the arrangements that exist in England and Wales, for example, hearings—in particular, on conduct matters—may be held in public, whereas that does not apply in Scotland. There is a presumption in the conduct regulations that misconduct proceedings—that is, on the conduct of the misconduct—will be in private and that people therefore have an expectation of privacy.

The Convener: My question is specifically on the report and why it is not possible for it to be published, even in redacted form. I express some surprise, because I would have expected that, as the disciplinary authority, you would have a full grasp of the small number of regulations that comprise the conduct regulations.

Deputy Chief Constable Fitzpatrick: I am sorry if the committee thinks that I do not have—

The Convener: I am only going by your comment that it was your understanding. I would have thought—

Deputy Chief Constable Fitzpatrick: My understanding is that there is an issue around the misconduct process, and the proceedings being in private. I was going to ask Mr McDowall, as my left-hand man here, to put me right if I had misinterpreted the regulations.

Superintendent McDowall: Absolutely. The police misconduct proceedings in Scotland are private proceedings. That is not similar to England and Wales. As a result—I do not think that this refers just to the specific matter of the PSNI investigation—it is important that we maintain consistency, not just for regulatory compliance but for all other misconduct regulations, which are not put into the public domain.

The Convener: Was the information that there were to be no proceedings shared with the complainers?

Deputy Chief Constable Fitzpatrick: I wrote to the complainers on 30 June with the result of the complaints investigation. The letters were very lengthy.

The Convener: That was the Durham Constabulary report. What about the PSNI report?

Deputy Chief Constable Fitzpatrick: That is right. I am trying to look now—[Interruption.] On 15 January, when we were speaking to the subject officers and letting them know the outcome of the conduct investigations into them—I am sorry; that took me a moment, because there have been so many letters on this—letters from me were hand delivered to each of the four complainers. Therefore, the complainers heard the outcome on the same day as the officers who had been subject to the misconduct investigation.

The Convener: Are you able to share how they responded to your decision not to institute proceedings?

Deputy Chief Constable Fitzpatrick: I think that that is a matter for them, convener.

The Convener: On the point about the retention of material and the recent exchanges on that, Police Scotland used quite an unusual phrase, if you do not mind me saying so, when it referred to any material on Police Scotland databases that did not “reflect the truth”. Can you explain what that means, please?

Deputy Chief Constable Fitzpatrick: Yes; I hope so. The committee will be aware that the original material that led to the IOCCO breach was one set of material; ultimately, the IPT judgment governs the disposal of that material. I understand that four of the complainers, three of whom were serving officers at the time, had some concerns, quite rightly, about other material about them that might be held on any of our databases—for example on our human resources database, or our professional standards database. When we talk about material that does not reflect the truth of these matters, that means any material that the complainers feel does not effectively represent the truth.

The IPT order governs the material that relates to the authorisations and the communications data. In speaking to the three complainers, as I did on 1 March 2017, I wanted to assure them of the fact that, if there was any material that they felt did not reflect truthfully what had happened, we would be very open to removing that material from any of our databases, such as our intelligence, HR, complaints or other databases.

The Convener: The complainers used the words “delivering our remedy”. Do you think that Police Scotland has delivered a remedy for people who have been wronged?

Deputy Chief Constable Fitzpatrick: There are two aspects to that. One is the effective remedy, which is referred to by the IPT; it was determined that that could come about only by an independent investigation into what has happened. Effectively, we have had two independent investigations. I know from speaking to the complainers when I met them on 1 March last year that they feel very gravely wronged in this matter, so for me there is that separate issue about what people feel personally is an effective remedy. Again, I cannot answer for the complainers on that, because I know that that is a very personal view.

The Convener: Do you think that it is legitimate that they continue to feel wronged?

Deputy Chief Constable Fitzpatrick: Absolutely. As I said to them when I met them, and as I have repeated in my letters to them, I feel that we failed them absolutely as an organisation, and that we continued to fail them by not being in contact with them. I continue to offer them my whole-hearted apologies for that failing.

The Convener: What reassurance can you give the people of Scotland that we will not see a repetition of this abuse?

Deputy Chief Constable Fitzpatrick: I have spoken about organisational learning. I think that it is very easy to use the phrase “organisational learning”, but I also think that it is legitimate to ensure that those lessons are actually implemented and that they effect change.

As the committee is aware, HM inspectorate of constabulary carried out a very early assurance review of our CCU arrangements, which has led to substantial change. The 39 recommendations that HMICS made have all either been completed or, in the case of three, are finally proposed for closure. In fact, HMICS is back with us to conduct a further review of our progress in implementing those recommendations. There is independent assurance around whether we have moved on from those days.

The Convener: Thank you. The committee will seek an update from the inspectorate on that work. Are there any further questions?

Margaret Mitchell: May I comment on one thing? It concerns the information that should be withdrawn. You said that it was about regulation, and that it did not fully reflect the truth. We were told quite bluntly that it had been made up. Unless you speak very plainly and say, “A spade is in fact a spade, we are holding up our hands to that and we will address it”, the lack of openness, transparency and accountability in how senior management—we are not talking about the rank and file—are getting on with their jobs on a daily basis, will mean that we will be here on a regular basis. At a senior level, openness, transparency and accountability must be at the very heart of what you do.

The Convener: Do you wish to respond, DCC Fitzpatrick? We are very keen that there is maximum engagement with the inspectorate on following up those 39 recommendations.

Deputy Chief Constable Fitzpatrick: Indeed, convener. I will respond to Mrs Mitchell’s point. We have asked Durham Constabulary, and it has very kindly agreed, to provide independent assurance on the process of removing material that, as I said, does not reflect the truth on all of our databases.

The Convener: I thank you all very much for your evidence. We now move into private session.

14:21 Meeting continued in private until 14:30

Meanwhile a day after the woeful evidence from Police Scotland witnesses to MSPs, information has emerged at an employment tribunal that Deputy Chief Constable Rose Fitzpatrick asked for relocation expenses to be paid by cash transfer.

A former accountant with the Scottish Police Authority (SPA) – Amy McDonald told the tribunal that the payment would not have gone through the payroll system, where it would have been taxed.

Mrs McDonald said this was akin to a bonus payment and was against SPA and government rules.

The tribunal heard that the senior accountant was frozen out by the SPA after raising objections.

Previously at the tribunal hearings, Mrs McDonald had also revealed four unnamed senior SPA figures had received significant payments of public cash – totalling £350,000.

Mrs MacDonald claims the four who received the payments should not have been entitled to them.

The payments included a £165,000 “golden handshake” for a senior executive who had been arrested for domestic abuse just weeks previously.

Mrs McDonald – who was the Scottish Police Authority’s director of Financial Accountability – told the tribunal she raised objections with the watchdog’s officials.

Two months after raising concerns, Mrs McDonald informed the public spending watchdog Audit Scotland and Justice Secretary Michael Matheson.

As a result, Audit Scotland probed issues raised and published a scathing report into the SPA’s finances in December, criticising the “unacceptable” use of taxpayers’ money – which has not been repaid.

DCC Fitzpatrick became Scotland’s most senior female police officer when she moved from the Metropolitan Police in London in 2012, ahead of the formation of Police Scotland in April 2013.

The Audit Scotland report said the deputy chief constable was given £18,000 to relocate during the 2014/15 financial year, and another £49,000 for a similar move in 2016/17.

Mrs McDonald told the employment tribunal hearing in Glasgow that DCC Fitzpatrick had asked for a cash transfer to be made for the expenses although by the time she made the request she had lived in Scotland for four years.

Mrs McDonald said: “I could not see any exceptional circumstances to support this payment of relocation expenses.

“There was no event or circumstance which I can see to support the claim.”

Mrs McDonald said DCC Fitzpatrick viewed the payment as more akin to a bonus and added: “The SPA does not allow bonuses to be paid. And Scottish government rules also prevent bonuses from being paid.”

Mrs McDonald said normally such payments would go through the payroll.

Ms McDonald said: “The deputy chief constable asked for a cash transfer. This is something which does not go through the tax system.”

In its report, Audit Scotland said relocation money paid to DCC Fitzpatrick and a further £53,000 to settle her tax liability in 2017 “did not represent a good use” of public funds.

While Audit Scotland rebuked the SPA for its poor accounting of these payments, none of the public funds have been repaid.

A BBC Scotland article reports that Ms McDonald’s tribunal case relates to hundreds of thousands of pounds in further payments received by other senior figures in policing from the SPA, all of which she says she raised concerns about through the body’s whistleblowing policy.

However, a court order obtained by the SPA prevents the names of those senior figures – who received large payments of public cash – from being revealed in connection with the proceedings.

Mrs McDonald is a qualified chartered accountant who joined the SPA as director of financial accountability in 2014. However, and possibly as a result of raising objections to matters of financial accountability, Mrs McDonald is no longer in a financial role at the SPA having moved to a position with its forensic science team.

The case in which the details of cash demands by DCC Fitzpatrick have emerged relates to an action brought by Mrs McDonald – who claims she has suffered as a result of highlighting the potential financial wrongdoing.

BBC Scotland has further revealed that the tribunal later heard that after Mrs McDonald had submitted her grievance, she was warned she had posed a terrorist threat to DCC Fitzpatrick.

In her application to the tribunal she had said that the deputy chief constable had sold her house but insisted she had only revealed the town and county where it was located.

Asked what she understood the threat to be, she said: “I had put DCC Fitzpatrick’s personal safety at risk, potentially she could come to great harm as a consequence.

“Not harm just for DCC Fitzpatrick but for her family as well.”

Mrs McDonald said she was extremely frightened by this and was put under a great deal of stress.

Further information payments to DCC Rose Fitzpatrick can be found in the Scottish Sun here: Law unto themselves – Police Scotland branded ‘dodgy tax haven’ for wrongly listing part of top cop’s taxpayer-funded £120k relocation deal as childcare vouchers

Events have further moved on today, with the announcement that the deputy chair of the Scottish Police Authority – Nicola Marchant – who was appointed under the former chair Andrew Flanagan – is to resign from her role on 21 March.

In a statement issued by the Scottish Police Authority, SPA Board member, Nicola Marchant, has announced her resignation from the Board of the SPA having stood down as Deputy Chair last month.

Dr Marchant informed the Cabinet Secretary and SPA Chair earlier this week and will step down on 21 March 2018.

Susan Deacon, Chair of the SPA said: “I want to thank Nicola for the contribution she has made to the SPA over the last two and a half years as a Board member, as Deputy Chair and most recently for her work on the Executive Review of the SPA. I wish her well for the future.”

Politicians have described this as a good move, however, there has been recent criticism of the new SPA Chair Susan Deacon’s praise of the Scottish Government’s approach to policing, raising questions as to whether Ms Deacon – who replaced Andrew Flanagan as SPA Chair – will fair any better in bringing transparency to the discredited Scottish Police Authority.

Previous articles on the Scottish Police Authority can be found here: Scottish Police Authority – Poor governance, private meetings & lack of accountability at Police regulator

 

Tags: , , , , , , , ,

TOP COP SECRETS: Transparency lacking at Police Scotland as spy scandal cops refuse to disclose files on complaints & historical sexual assault case details involving Deputy Chief Constable Iain Livingstone

Police Scotland refused to disclose secret files on top cop. SCOTLAND’S single national Police service – Police Scotland has refused to disclose details of secret files on a case involving allegations of sexual assault against the force’s most senior office – Deputy Chief Constable Iain Livingstone.

The force also refused to disclose any non-disclosure agreements which may have been part of any settlement of the case – which ultimately led to the female officer leaving her job,

And, the information has been categorised as so sensitive, Police Scotland refuse to confirm if the files even exist.

The move came in relation to Freedom of Information requests seeking details of information held by Police Scotland on accusations and allegations of sexual assault made by a female Police Officer against current DCC Iain Livingstone during his time in Lothian and Borders Police.

Also sought for disclosure was information contained in any discussions or misconduct hearings in relation to these allegations and information contained in any admissions by Iain Livingstone with regards to these allegations and, any information contained in any non-disclosure agreements, termination of employment, resignation or retirement of any persons or Police Officers making these allegations against Iain Livingstone.

However a statement from Police Scotland in response to the Freedom of Information request refused any form of disclosure or acknowledgement of the status of any files held by Scotland’s single national Police service – who said:

“Police Scotland endeavours to provide information whenever possible. However, under section 18(1) of the Act, a public authority may refuse a request where:

• if the information existed and was held by the authority, it would be exempt from release under any of Sections 28 to 35, 38, 39(1) or 41 of the Act; and

• the authority considers that to reveal whether the information exists, or is held by it, would be contrary to the public interest.

In this instance, it is considered that to reveal whether the information you have requested exists, or is held by Police Scotland, would be both exempt from release under the Act and contrary to the public interest. There is a strong public interest in protecting individuals’ privacy, and personal information is exempt from release into the public domain under section 38 of the Act if it would be unfair, unlawful or otherwise breach the Data Protection Act.

For these reasons, Police Scotland must refuse your request under section 18(1) of the Act.

This notice should not be taken as conclusive evidence that the information you have requested exists or is held.”

Issues surrounding the allegations of sexual assault made by a female Police Officer against Iain Livingstone while he served at Lothian & Borders Police in 2003 resurfaced during recent scrutiny of Police Scotland over the past year.

Livingstone was however, cleared of the allegations by a hearing chaired by another senior Police officer – John McLean, Strathclyde assistant chief constable. The Police led hearing on allegations against Police Superintendent Livingstone established there had been no sexual impropriety or intent on Mr Livingstone’s part.

However, interest in the 2003 case and details surrounding it has resurfaced – after the single Police service – created by the Scottish Government in 2013 – was hit by several scandals including numerous suspensions of senior officers, allegations of Ministerial meddling with ultimately led to the ousting of Chief Constable Phil Gormley, and the ongoing probe into senior officers use of a surveillance unit within Police Scotland to illegally spy on journalists & cops.

At the time of the sexual assault allegations in 2003, Iain Livingstone, 37, was working as an aide to Scotland’s most senior police officer, Sir Roy Cameron, at Her Majesty’s Inspectorate of Constabulary, when he was suspended in February 2003 over the claims – which arose from a drunken party at the Scottish Police College at Tulliallan.

It was reported at the time that Iain Livingstone – previously a solicitor and member of the Law Society of Scotland – had been suspended for 17 months after the WPC claimed she had been sexually assaulted during the party.

Five allegations of serious sexual assault made by the female Police officer against Livingstone were dismissed – but, at an internal misconduct hearing, Mr Livingstone admitted less serious allegations, including being in the woman’s room overnight after falling asleep.

A qualified lawyer and member of the Law society of Scotland, Mr Livingstone switched careers in 1992, joining Lothian and Borders Police. In just 10 years, he reached the rank of superintendent.

Livingstone was ultimately demoted from superintendent to constable following the disciplinary hearing, although is now in the position of caretaker Chief Constable of Police Scotland, while the Scottish Government attempt to find another ‘suitable’ candidate to fill the Chief Constable post vacated by Phil Gormley.

However, recent interest in the case surfaced after it emerged DCC Iain Livingston was being promoted to fill the Chief Constable slot vacated by Gormley – who had effectively been ousted from his job after Justice Secretary Michael Matheson intervened in a decision taken by the Scottish Police Authority to allow Mr Gormley to return to work

And, it later emerged that during evidence given by Deputy Chief Constable Iain Livingstone to the Scottish Parliament’s Justice Committee, neither Livingstone or the Justice Sub Committee Convener John Finnie declared they knew each other, after papers revealed Mr Finnie had represented Mr Livingstone when he was cleared of the sexual misconduct claims in 2003.

In a further refusal to disclose information on the current top cop in Scotland, Police Scotland refused to reveal any information in relation to additional complaints made against Deputy Chief Constable Iain Livingstone.

And, again, Police Scotland refused even to confirm if such information was held – this despite information already available in the public arena including discussions on social media platforms relating to additional complaints made against DCC Livingstone by Police Officers.

A request for information relating to numbers of complaints, subject of complaints, and identities (not name, but by rank, status as Police Officer, civilian employee, member of the public or other) – who have made complaints (and the numbers of complaints) against current DCC Iain Livingstone from 1 April 2013 to the date of this FOI request and the status, and outcomes of these complaints – resulted in the following response from Police Scotland, with a refusal to disclose:

“Police Scotland endeavours to provide information whenever possible. However, under section 18(1) of the Act, a public authority may refuse a request where:

• if the information existed and was held by the authority, it would be exempt from release under any of Sections 28 to 35, 38, 39(1) or 41 of the Act; and

• the authority considers that to reveal whether the information exists, or is held by it, would be contrary to the public interest.

In this instance, it is considered that to reveal whether the information you have requested exists, or is held by Police Scotland, would be both exempt from release under the Act and contrary to the public interest. There is a strong public interest in protecting individuals’ privacy, and personal information is exempt from release into the public domain under section 38 of the Act if it would be unfair, unlawful or otherwise breach the Data Protection Act.

For these reasons, Police Scotland must refuse your request under section 18(1) of the Act.

This notice should not be taken as conclusive evidence that the information you have requested exists or is held.”

And, it emerged in February of this year that during evidence given by Deputy Chief Constable Iain Livingstone to the Scottish Parliament’s Justice Committee, neither Livingstone or the Justice Sub Committee Convener John Finnie declared any previous links to each other while Livingstone testified before MSPs.

A report in the Sunday Mail newspaper in February revealed Mr Finnie – previously a serving Police Officer and representative for the Scottish Police Federation (SPF) – had represented Mr Livingstone when he was cleared of the sexual misconduct claims in 2003.

The issue was reported by the Sunday Mail newspaper here:

Green MSP under fire after failing to reveal sex case link to top cop Iain Livingstone

John Finnie failed to tell MSPs he represented the acting chief constable when he was cleared of sexual misconduct.

By Mark Aitken 18 FEB 2018

John Finnie failed to tell MSPs he represented Iain Livingstone

A Green MSP is facing questions over his connection with Scotland’s acting chief constable.

Former police officer John Finnie failed to tell fellow MSPs he had represented Iain Livingstone when he was cleared of sexual misconduct.

He failed to declare the link at a meeting of Holyrood’s justice committee when Livingstone was being questioned.

Finnie spent 14 years as an official for the Scottish Police Federation (SPF) – the organisation who represent police officers up to the rank of chief inspector.

Livingstone, the frontrunner to replace Phil Gormley as Scotland’s chief constable, was acccused in 2004 of sexually assaulting a female police officer.

Livingstone admitted falling asleep in the woman’s room at the Scottish Police College in Tulliallan, Fife, after a drunken party in 2000.

Iain Livingstone was accused of sexually assaulting a female police officer in 2004

At an internal hearing, more serious allegations were dropped.

Livingstone, who was then a superintendent, was demoted to constable but won his job back on appeal. Livingstone’s appeal was backed by the SPF.

Finnie said at the time that the case had highlighted “the ease with which the system can be abused and the punitive consequences which affect not only the officer but their family”.

At Holyrood’s justice committee in January, Finnie quizzed Livingstone about staffing levels and said losing chief officers was one of the benefits of creating a single police force.

Scottish Labour justice spokesman Daniel Johnson said: “John is a valued colleague on the justice committee but I am alarmed that he did not see fit to declare this link with the acting chief constable.

“Police Scotland are in desperate need of scrutiny – and the public will expect such scrutiny to be conducted professionally.

“I would urge him to correct the record and to ensure he declares interests fully and promptly in future.”

A spokesman for the Scottish Conservatives added: “He also owes parliament an explanation as to why he neglected to mention this very important link.”

Finnie began his career with Lothian and Borders Police in 1976 and moved to Northern Constabulary three years later.

He served as a full-time officer with the SPF from 1992 to 2006.

Finnie was elected as an SNP MSP in 2011 but quit the party the following year in protest at the decision to end their long-standing opposition to Nato membership.

Finnie and the Greens failed to respond to the Sunday Mail’s calls.

It has since come to light there are a number of non disclosure agreements in force which relate to Police Officers and others connected to Policing in Scotland, a matter now being probed by the media for further reporting.

 

 

Tags: , , , , , , , , ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUDICIAL REGISTER MUST GO FORWARD:

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

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

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

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

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

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

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

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

 

Tags: , , , , , , , , , , ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judiciary (Register of Interests) (PE1458)

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

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

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

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

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

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

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

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

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

Members indicated agreement.

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

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

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

Members indicated agreement.

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

Call for Scottish judges to register interests gets backing from MSP

Martin Hannan Journalist 7th December 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Martin Hannan Journalist 9th December 2017

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

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

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

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

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

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

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

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

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

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

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

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

JUDICIAL REGISTER MUST GO FORWARD:

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

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

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

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

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

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

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

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

 

 

Tags: , , , , , , , , , , , ,

JUDICIAL REGISTER: Calls to invite Supreme Court President Lady Hale to Holyrood for evidence on judicial interests register – as Judicial Office concede on addition of 500 Justices of the Peace to recusals register & publication of tribunal recusals

MSPs hear calls to invite UKSC President Lady Hale to Holyrood. A FIVE YEAR Scottish Parliament investigation of Petition PE1458: Register of Interests for members of Scotland’s judiciary has received further submissions – calling for MSPs to invite Baroness Hale to give evidence at Holyrood.

Calls for Lady Hale – President of the UK Supreme Court (UKSC) – to be invited to appear before the Scottish Parliament – come on the back of evidence presented to MSPs on the lack of transparency relating to recusals in UK’s top court – which also serves Scotland as the court of last resort.

While courts in Scotland now publish details of judicial recusals – where judges stand down from cases due to a conflict of interest – the UK Supreme Court has refused to take on this extra transparency measure.

Transparency campaigners cite the Supreme Court’s refusal to publish recusals as creating an imbalance in transparency with a court based in London which Scots based litigants & accused persons must still rely on for a right of appeal.

Submissions filed with the Scottish Parliaments Public Petitions Committee also urge MSPs to quiz Lady Hale on the current stance of the UK’s top court on declarations of judicial interests in a publicly available register – a move currently opposed by the Supreme Court according to policy currently posted on the UKSC’s website.

A supplementary submission lodged earlier this week also reveals major concessions from the Judicial Office for Scotland after discussions between the petitioner and the Head of Strategy and Governance at the Judicial Office.

MSPs have been made aware an agreement has been reached where up to five hundred Justices of the Peace are now to be included in the Register of Judicial Recusals – created by ex Lord President Brian Gill in February 2014 – in response to meetings with MSPs on Petition PE1458.

However, the submission asks MSPs to seek answers on why Justices of the Peace – who comprise the bulk of Scotland’s judiciary – were excluded from the recusals register when it was set up in April 2014.

An additional concession from the Judicial Office passed to MSPs also reveals that recusals which take place on the many tribunals under the wing of the Scottish Courts and Tribunals Service (SCTS). will be published at a date yet to be decided.

MSPs have also been asked to consider calling Ian Gordon – the new Judicial Complaints Reviewer (JCR), who took over from Gillian Thompson and hear his views on declarations of judicial interests.

Both previous Judicial Complaints Reviewers – including well known transparency campaigner Moi Ali – fully support the petition calling for the creation of a register of judicial interests in Scotland.

A full report on Moi Ali’s evidence to MSPs and support for proposals calling for the creation of a register of judicial interests is reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Meanwhile it can be revealed written evidence of failures to declare interests at the UK’s top court has been passed to journalists and MSPs for study.

The material, identifies a judge who took part in a case in the Court of Session on multiple occasions who then took a seat on the Supreme Court – and knocked back an appeal from the same case he had ruled on, without declaring any former interest in the case after blocking the route of appeal.

Later today, members of the Scottish Parliaments Public Petitions Committee will consider the request to call Lady Hale and obtain more answers on judicial recusals.

UK SUPREME COURT: MOST POWERFUL, NOW LEAST TRANSPARENT:

The current stance of the UK Supreme Court has previously been used by judges in Scotland to avoid creating a register of judicial interests in response to the cross party supported petition still under investigation at the Scottish Parliament.

UK Supreme Court on declarations of judicial interests statement:

Background: Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.


On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.

Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.

Current position:  Against this background the Justices have decided that 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 UKSC website.

In addition all the Justices have taken the Judicial Oath – and they all took it again on 1 October 2009 – 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 all 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 from sitting in that case – whether a substantive hearing, or an application for permission to appeal.

The latest submissions filed with the Scottish Parliament’s Public Petitions Committee in relation to Petition PE1458: Register of Interests for members of Scotland’s judiciary are reprinted below:

PE1458/IIII: Petitioner submission of 4 September 2017

I would like to draw to the attention of members the appointment of Baroness Hale as President of the UK Supreme Court, which also serves as the most senior court in the UK for appeals from Scotland.

Noting Baroness Hale’s recent comments in relation to the appointment of judges (Let ministers pick judges, says Supreme Court chief Baroness Hale, The Times, 23 August 2017) and other matters, I request Baroness Hale be invited to give evidence before the Petitions Committee.

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

Members may also wish to raise questions to Baroness Hale on the disparity of judicial transparency between Scotland and UKSC on judicial recusals, where as members are aware, the Judiciary of Scotland now list details of recusals, compared to the UKSC in London – where this information has not yet been made available to all UK users of the Supreme Court.

The position of the UKSC on the current lack of a register of judicial interests has entered Committee discussions on numerous occasions, and in evidence. Lady Hale’s appointment as President would be a significant opportunity for this Committee to hear from the top UKSC judge on a court which also serves the interests of Scotland.

Lord Carloway evidence to Petitions Committee 29 June 2017: In response to evidence given by Lord Carloway to members I note Lord Carloway claims the creation of a register of interests would deter recruitment of candidates to become judges.

In no other walk of life including politics – does the existence of a register of interests deter recruitment of individuals to a profession or industry. A register of interests is designed to promote accountability and transparency. If someone were to be deterred from a job due to the existence of a register of interests there would quite properly be questions on why transparency would hinder someone from applying for a position of such authority, power – and – responsibility to serve the community.

Lord Carloway stated the critical distinction for judges in this case is that the judiciary require to be independent of any form of government – a point no one or this petition is questioning.

However, and to quote Scotland’s first JCR Moi Ali in a letter to the Petitions Committee of 23 April 2014 “The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime.”

To add to Ms Ali’s comments, members will be aware a decision by the judiciary can effectively revoke an item of legislation created by the Scottish Parliament, or the House of Commons if a legal challenge in court to a law is successful. Examples of such cases – including HMA V Cadder – have occurred over recent years, requiring emergency legislation to address issues of successful judicial challenges.

One branch of the Executive which can overturn legislation from another branch, or our elected Parliaments, clearly requires the same implementation of transparency as the other.

In light of the judiciary’s position as the most powerful branch of the Executive – and their considerable effect on public life, policy and legislation, an equivalent, or even greater level of transparency is required to be applied to the judiciary by way of creating a register of judicial interests.

In his evidence, Lord Carloway goes on to claim a register of judicial interests should only be created if the judiciary detect corruption within it’s own ranks.

This is not a credible position in terms of public expectation of transparency in 2017.

Registers of interest exist to ensure transparency and accountability in public life and there is now clearly a requirement for members of the judiciary to declare their interests as practiced by all others in public life.

In conclusion of Lord Carloway’s evidence, I note the Lord President was unable to provide a single legitimate example of harm caused to the judiciary by the creation of a register of interests, nor one single reason why the judiciary should be exempt from the same levels of public transparency which rightly apply to everyone else.

There is cross party backing for the creation of a register of judicial interests, as has already been demonstrated at Holyrood during the motion debate of October 2014, and widespread support in the media and public, and from both Judicial Complaints Reviewers for judges to be required to declare their interests.

Creating a register of interests for members of Scotland’s judiciary is the right thing to do.

Members will also be aware of the appointment of a new Judicial Complaints Reviewer – Mr Ian Gordon, formerly the Convener of the Standards Commission for Scotland.

Mr Gordon’s appointment, along with concerns from the outgoing JCR Gillian Thompson, and calls for a review of the role and powers of the JCR – were reported in the Sunday Herald (Calls for more funding as new judicial watchdog appointed, Sunday Herald, 15 August 2017).

As Mr Gordon is well versed in standards, and public expectation of transparency, I ask the Committee call Mr Gordon to give evidence on his experience in relation to standards in public life, and any thoughts he may have as the new Judicial Complaints Reviewer – with regards to the creation of a register of judicial interests.

Members may also wish to note the retiring JCR – Gillian Thompson who gave evidence to the Committee in July 2015 has published information in her 2014/15 annual report in relation to her continued support for this petition, which available on the JCR’s website here: Judicial Complaints Reviewer Annual Report 2014-2015

All annual reports from the Judicial Complaints Reviewer including those from Moi Ali, are available here: Judicial Complaints Reviewer – Annual Reports

In light of the progress on this petition, public interest, and public debate, I would like to encourage this Committee to begin discussions with other Committees to determine which is the best way to advance this petition forward.

There is now five years of work, from MSPs, Public Petitions Committee members past & present, PPC clerks, two Judicial Complaints Reviewers, Parliamentarians from other iurisdictions, legal academics, submissions from members of the public, wide support in the media and across the spectrum of politics & public for the implementation of a register of judicial interests.

This team effort should rightly culminate in what will be a significant gain for the justice system, judiciary and courts – in terms of transparency and accountability, and a gain for this Parliament in creating the legislation to bring about such judicial transparency, and increase public confidence in our courts.

Finally, as Lord Carloway raised the subject of problems in judicial recruitment if a register is created, I urge the Committee write to the Sheriff’s Association, the Scottish Justices Association, the Law Society of Scotland and the Faculty of Advocates on this particular subject, seeking their views in writing, so these issues can become a matter of public record in this debate.

PE1458/JJJ: Submission from the Petitioner, 29 November 2017

A further development of interest to members with regards to the Register of Judicial Recusals – created by former Lord President Lord Brian Gill as a result of this petition in April 2014.

During the creation of the Register of Judicial Recusals in 2014, some 400 plus members of the judiciary – Justices of the Peace – were excluded from the register for no apparent reason.

Recent communications with the Judicial Office and further media interest in the petition[has prompted the Judicial Office to finally include Justices of the Peace in the Register of Judicial Recusals – with a start date of January 2018.

This follows an earlier development after Lord Carloway gave his evidence to the Committee, where the Judicial Office agreed to publish a wider range of details regarding judicial recusals, A copy of the revised recusal form for members of the Judiciary has been provided by the Judicial Office and is submitted for members interest.

Additional enquiries with the Judicial Office and further media interest on the issue of Tribunals which come under the Scottish Courts & Tribunals Service (SCTS) and Judicial Office jurisdiction has produced a further result in the Judicial Office agreeing to publish a register of Tribunal recusals.

I urge members to seek clarification from the Judicial Office and Lord President on why Justices of the Peace, who now comprise around 500 members of the judiciary in Scotland, were excluded from the recusals register until now – as their omission from the recusals register has left a distorted picture of judicial recusals in Scotland.

Since my earlier submission of 4 September, the Scottish Courts & Tribunals Service has published their Annual Report, which contains a Register of Interests for SCTS Board members, including several members of the judiciary, available here: Scottish Courts & Tribunals Service Annual Report 2016-2017

While the register exists for a handful of judges who sit on the SCTS Board – including Lord Carloway, and does include further detail on some financial holdings of the judiciary, as provided by the Judicial Office SCTS Board shareholdings register – there is clearly a format by which this same register, with enhanced requirements of disclosure as appear in other jurisdictions, could be applied to all members of Scotland’s judiciary.

Finally, I wish to draw attention to members of the status of the Norwegian Register of Judicial Interests, which is a very comprehensive register, and could well be used as a template for a similar register of judicial interests in Scotland.

The Norwegian register of judicial interests is available here: Norway – Register of Judicial Interests. I urge members to contact Norway’s judiciary to seek comments on their register of judicial interests, and if necessary invite evidence on Norway’s implementation of such a register and how it impacts on judicial transparency.

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

 

 

Tags: , , , , , , , , , , , , ,

ALL THE LORD PRESIDENT’S INTERESTS: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary

Scottish Parliament probe judicial interests & register proposal. A FIVE YEAR Scottish Parliament probe into Petition PE1458: Register of Interests for members of Scotland’s judiciary has generated over sixty two submissions of evidence, twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate.

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

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

The petition has also secured the support of Scotland’s Judicial Complaints Reviewers Moi Ali, and Gillian Thompson.

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

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.

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

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

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

The timeline of debates at the Scottish Parliament’s Public Petitions Committee on Petition PE1458:

Petition PE1458 Register of Interests for Scottish Judiciary Scottish Parliament 8 January 2013

The Committee decided to call for submissions on the petition from the Lord President, the Law Society of Scotland, Faculty of Advocates and Crown Office.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to legislate to create a Register of Interests for Scotland’s judiciary was heard today 5 March 2013. The Committee decided to call for further evidence and also to invite the Lord President Lord Gill and others along to speak to MSPs and be questioned on the matter.

Petition 1458 Register of Interests for Scotland’s Judiciary Scottish Parliament 16 April 2013

 

A petition calling for a register of interests for Scotland’s judiciary has again been debated at the Scottish Parliament, where upon the Lord President Lord Gill’s refusal to attend the Petitions Committee to give evidence, the Petitions Committee decided to repeat its invitation to Lord Gill to attend, and also agreed to seek the views of the Judicial Appointments Board and the Judicial Complaints Reviewer.

Petition 1458 Register of Interests for Scottish Judiciary 25 June 2013 Scottish Parliament

Members of the PPC decided to invite Moi Ali, the Judicial Complaints Reviewer to give evidence and also to contact Dr Kennedy Graham MP of the New Zealand Parliament. Dr Graham currently has a bill before MPs in New Zealand calling for a Register of Pecuniary Interests of Judges. During the debate it was noted Lord Gill has refused to attend the Scottish Parliament to discuss the petition and judge’s interests, but has attended the Justice Committee to discuss court closures in Scotland.

Evidence from Judicial Complaints Reviewer Moi Ali on Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament

Moi Ali, Scotland’s Judicial Complaints Reviewer gives evidence to MSPs at the Scottish Parliament regarding Public Petition PE1458 calling for a Register of Interests for Scotland’s Judiciary.

Petition 1458 Register of Judicial Interests Public Petitions Committee 28th January 2014

Following a private meeting between Scotland’s top judge, the Lord President Lord Brian Gill, and the Convener & Deputy Convener of the Public Petitions Committee of the Scottish Parliament,the Committee agreed today, 28 January 2014 to defer consideration of Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to create a register of judicial interests, pending receipt of a letter from the Lord President.

The Convener, David Stewart MSP and Deputy Convener, Chic Brodie MSP reported back to members on what had been said at the private meeting with Scotland’s top judge who refused to attend the Scottish Parliament to be questioned on his deep seated opposition to the proposal to requie Scottish judges to declare all their interests, hidden wealth, family & business links and other matters which may impact on cases being heard before judges in Scottish courts.

Committee Member John Wilson MSP requested details of the private meeting with the judge be put on the official record of the Committee, and Jackson Carlaw MSP drew attention to the fact had it not been for the Petitions Committee asking tough questions there would not even be any letters forthcoming from Lord Gill.

The petition will be heard once a letter has been received from Scotland’s top judge, who appears to be set against any attendance to face questions on why judges should not be required to register their interests, unlike all other public officials, politicians, Government Ministers and others.

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

The Committee agreed to seek time in the chamber for a debate on the petition. The Committee also agreed to write to the Lord President and the Scottish Government.

Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament Public Petitions Committee

The Committee agreed to continue the petition, and is seeking a debate in the main chamber of the Scottish Parliament. The Committee also agreed to write to the Lord President and the Scottish Government for more detailed responses.

The next fifteen video clips are from the debate held at the Scottish Parliament on Thursday 09 October 2014, in which MSPs, Scottish Government ministers and members of the Public Petitions Committee spoke in the debate. The full text of the speeches of each MSP can be found here: DEBATING THE JUDGES: Cross party support for proposal seeking a register of interests for members of Scotland’s Judiciary as Scottish Parliament holds first ever debate on judicial accountability & transparency

David Stewart MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

David Stewart: The committee’s motivation in giving consideration to the issue and in seeking time in the chamber to debate it is a point of principle and comes from the starting point of there being an assumption of openness and transparency in all areas of public life in order to shine a light, if you like, into every corner of Scottish society.

Roseanna Cunningham MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Roseanna Cunningham: The setting up of a register of judicial interests would be a matter for the Lord President, as head of the judiciary in Scotland. The Lord President takes the view that a register of pecuniary interests for the judiciary is not needed. Furthermore, a judge has a greater duty of disclosure than a register of financial interests could address.

Graeme Pearson MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Graeme Pearson: Until the petition was discussed, there was no knowledge of recusals in the public domain. I welcome the fact that, as of April this year, the Lord President has introduced a register of recusals. It is fair to say that without the petition and the work of the Public Petitions Committee, such a register would probably not have been considered.

Jackson Carlaw MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Jackson Carlaw: It is perhaps difficult to take on the judiciary, because judicial independence is always mentioned. As I said, that is a cornerstone of democracy, but because there has been no separation of accountability and independence, it is easy for the judiciary to say, ‘We are independent, so don’t interfere in that.’ Unless independence and accountability are separated, legislation will continue to include no requirement for more openness and transparency.”

Angus MacDonald MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Angus MacDonald: If we as elected members have to register and declare our interests, I see no reason why members of Scotland’s judiciary should not be subject to a full and publicly available register of judicial interests.

Anne McTaggart MSP Register of Judicial Interests debate – Petition PE1458 Scottish Parliament 9 Oct 2014

Anne McTaggart: In Scotland, claims continue to emerge of trials that have been unfair as a result of religious, ethnic or national bias. As long as those claims continue to exist, it is the Parliament’s job to promote fair government. In conclusion, I declare my support for the petition and encourage support from all the other MSPs.

David Torrance MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct

David Torrance: Although I understand that conflicts of interest are on occasion declared in open court prior to taking on a case, the introduction of a register of interests would provide a more consistent and sound basis on which to move forward.

Neil Findlay MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Neil Findlay: We need to do much more to make our society less secretive and less closed, and I think that the register that we are discussing is just one step towards that end. I, for one, give it my full support and urge other MSPs to do the same.

Joan McAlpine MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct 2014

Joan McAlpine: I gently suggest to the Lord President, in whose gift it is to set up a register, as we cannot legislate for it in the Parliament, that he should be mindful of the need for the judiciary to move with the times, along with every other public institution, in order to retain the confidence of the public.

John Wilson MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

John Wilson: A register of interests for judges is an area in which we could move forward and build more confidence in the system that we have in place.

Stewart Stevenson MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Stewart Stevenson: I encourage Lord Gill and his successors to think about recalibrating their relationship with Parliament.

Jackson Carlaw MSP closing speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Jackson Carlaw: Mind you, I would point out that we, too, swear an oath, but we nonetheless still subscribe to a register.

Elaine Murray MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Elaine Murray: “Given the position of power held by the judiciary, it is essential not only that they have absolute integrity–but crucially, that they are seen to have absolute integrity.” Therefore, the issue is not that anyone doubts the judiciary’s integrity, but that the public need to see that integrity.

Roseanna Cunningham MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Roseanna Cunningham: A number of members referred to the register of interests of MSPs. However, the situation is different, because we are directly accountable to the electorate.

Chic Brodie MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Chic Brodie: There is concern that a register would have unintended consequences—a phrase that has been used often in the debate—for the judiciary’s freedom and privacy and its freedom from harassment from the media or dissatisfied litigants. Those are concerns, but they are no less so for others in public life, including MPs and MSPs, who may be attacked publicly for non-declaration of interests. Although it is argued that the establishment of a register may have the unintended consequence of eroding public confidence in the judiciary, it might equally be argued that its absence might have the same effect.

The debate at the Scottish Parliament now returns to deliberations of the Public Petitions Committee on Petition PE1458 – A Register of Interests for members of Scotland’s Judiciary:

Register of interests for judiciary Petition PE1458 Scottish Parliament 28 October 2014

Paul Wheelhouse Register of Judicial Interests Petitions Committee Scottish Parliament 9 Dec2014

Minister for Community Safety Paul Wheelhouse gives evidence to the Public Petitions Committee on their investigation of proposals to create a register of judicial interests as called for in Petition PE1458. Mr Wheelhouse on behalf of the Scottish Government opposes the creation of a register which will inform the public about what judges have, their interests, links to big business, banks, shares in corporations and tax avoidance scams.

Petition 1458 Register of interests for Scotland’s Judiciary Scottish Parliament 12th May 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 12 May 2015. The Committee agreed to call Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer to give evidence on the creation of a register of judicial interests.

Evidence of Gillian Thompson Judicial Complaints Reviewer Register of Interests for Judges Petition PE1458 Scottish Parliament 23 June 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 23 June 2015. The Committee took evidence from Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer who gave evidence in support of the creation of a register of judicial interests.

Lord Brian Gill evidence to Public Petitions Committee Scottish Parliament 10 Nov 2015

Lord Brian Gill, former Lord President and Lord Justice General of Scotland gives evidence to the Scottish Parliament’s Public Petitions Committee on Petition PE1458 calling for a register of interests for judges.Gill refused two earlier invitations to appear before the Public Petitions Committee in 2013 and was dubbed “Lord No No.”. Several times during the debate the 73 year old ‘retired’ Lord Gill called on the panel of MSPs to show faith in the UK judiciary and scrap the petition along with calls for greater transparency of judges interests.

Petition PE1458 Register of Interests for Judges Public Petitions Committee Holyrood 1 Dec 2015

Petitions Committee member Kenny MacAskill MSP calls for the committee to invite the new Lord President upon their appointment to appear to give evidence. Convener Michael McMahon MSP agrees to write to the new Lord President.

Petition PE1458 Register of judicial interests Scottish Parliament 23rd February 2016

The Committee decided Lord Carloway is to be called to give evidence, MSPs will also contact Professor Alan Paterson of the University of Strathclyde for evidence.

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

The Petitions Committee decided to call Lord President Lord Carloway to give evidence, and also hear from Professor Alan Paterson of the University of Strathclyde.

Petition PE1458 Register of Interests for judges Public Petitions Committee 22 Dec 2016

MSP Angus MacDonald (SNP) moves to call Professor Alan Paterson to give evidence to the committee and for msps to consider evidence from the Professor then to contact the Lord President, Lord Carloway.

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

Professor Alan Paterson evidence to Public Petitions Committee on creating a register of interests for members of Scotland’s judiciary.

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

Members of the Scottish Parliament’s Public Petitions Committee decide to invite Lord President Lord Carloway to provide evidence before the Committee at a future date, and to invite Alex Neil MSP to appear before the Committee at the same meeting. The decision was taken after Lord Carloway offered concessions on the recusal register of Scotland’s judiciary – created as a result of this petition.

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

Lord Carloway gives evidence to the Public Petitions Committee on a proposal to create a register of judicial interests for members of Scotland’s judiciary. The proposal has been investigated by the Scottish Parliament for five years, there is wide support for the register, from cross party msps to the media to both Judicial Complaints Reviewers.

The Petition will next be heard on Thursday 7 December 2017 where the Public Petitions Committee will be asked to consider taking evidence from Baroness Hale, President of the UK Supreme Court, and to seek further evidence on the operation of Norway’s Register of Judicial Interests.

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

 

 

Tags: , , , , , , , , , , , ,