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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judiciary (Register of Interests) (PE1458)

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

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

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

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

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

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

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

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

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

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

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

The Convener: That is interesting. Thank you.

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

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

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

Maurice Corry: Thank you.

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

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

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

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

Rona Mackay: That is fine.

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

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

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

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

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

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

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

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

The Convener: So that was not the issue.

Professor Paterson: That is my understanding of the case.

The Convener: That is very helpful. Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Convener: Do members agree to take those actions?

Members indicated agreement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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JUDICIAL REGISTER: Figures reveal Scotland’s judges received £471million since 2008 financial crash, benefit from extra £2billion on courts & legal aid – yet declare no wealth, assets or interests

Transparency register now essential for judges. THEY HAVE the power to strike down legislation from our elected Scottish Parliament, enact their own versions of the law with Acts of Sederunt, suspend your liberty, and dodge questions on their activities – yet figures reveal Scotland’s secretive judicial elite who control our courts – have received a staggering £471 million of public cash for salaries and judicial related ‘activities’ since the financial crash of 2008.

Judges on up to £230K a year – some holding judicial posts for well over twenty years, have also directly benefited from a massive £885 million of public cash thrown at Scotland’s courts since 2008 – including a £58 million taxpayer funded refit of Parliament House – the headquarters of Scotland’s current Lord President & Lord Justice General – Lord Carloway.

And, don’t forget the staggering £1.207 billion of legal aid – yet another public cash subsidy for the legal profession to prop up our creaking, expensive and exclusive billion pound courts who close their doors as soon as they hear the word “transparency”.

Yet – the collection of Senators of the Court of Session, temporary judges, sheriffs of varying titles, tribunal & land court judges – (around 265 in number) and an army of up to 450 justices of the peace – declare not one single interest, connection, item of wealth, property value, or paid outside work, outside of revelations in the media of judges’ links to big banks & dodgy businesses contained in the SCTS Board register.

There is no other group in society who are allowed such a privilege of secrecy – while benefiting directly from billions of pounds in public cash.

The weak, disabled and most vulnerable in society are strip searched and harassed day & night, whenever they dare ask for help.

Even an elected councillor, msp and all other public officials must tally up their stationery costs and claims for rubber bands.

Yet there are no questions, requirements of transparency or accountability for the judiciary – who jet set at-will around the world on taxpayers cash, operate a judicial version of a diplomatic service and rake in cash for speeches, conference attendance, and legal work – without fear of having to declare one single item of their wealth, connections to despots, the rich & powerful and links to big business – in public.

By any stretch of the imagination, this scenario, is shocking.

The figures – sourced from the Scottish budget on judicial salaries, travel, junkets, ‘training’ and various enterprises operated by the Judicial Office for Scotland falling under the term “Courts Group” to various related courts & tribunal support entities- reveal the total spend on Scotland’s judiciary since 2008 stands at £470.6m.

Budget spend on judiciary: 2007-2008: £41.8m, 2008-2009: £44.3m, 2009-2010: £46.3m, 2010-2011: £51.1m, 2011-2012: £50.0m,2012-2013: £52.4m, 2013-2014:£52.1m,2014-2015: £51.6m, 2015-2016: £40.5m (missing £11.1 switched to SCTS budget), 2016-2017: £40.5m  (missing £11.1 plus – switched to SCTS budget)

Courts Group had overall responsibility for financing the cost of the Judiciary, including Scottish Government contribution to the superannuation costs of the judiciary, for the fees to part-time judiciary, for the running costs of a number of small departments and other judicial expenses (training and travel etc).

Judicial salaries are defined as non-voted spending which is met from the Scottish Consolidated Fund but is also part of the Departmental spending limit.

Courts group was renamed Courts, Judiciary and Scottish Tribunals Service during 2012. In the latest Scottish Government 2016-2017 budget, the designation defining judicial costs is tagged as “Judiciary”.

Figures sourced from the Scottish Budget reveal the total spend on Scottish Courts and Tribunals Service (SCTS) since 2008 stands at £884.7m with the added-in £58m for the Parliament House refit.

Budget spend on courts: 2007-2008: £79.4m, 2008-2009: £81.3m, 2009-2010: £94.7m, 2010-2011: £93.5m, 2011-2012: £79.9m, 2012-2013: £77.0m, 2013-2014: £72.3m, 2014-2015: £72.3m,2015-2016: £87.4m (includes missing £11.1m from courts group responsible for Judiciary), 2016-2017: £88.9m (includes missing £11.1m plus – from courts group responsible for Judiciary).

As you read these facts and figures, remember – this is about how public cash to the tune of half a billion pounds is spent by a group of the most powerful people in the land – who resist declaring their interests, how the judiciary operate, create umbrella institutions without accountability and outwith the scope of Freedom of Information laws, make policy on their own and operate without any oversight.

The existing lack of judicial transparency and accountability allows this to continue, unchecked and unchallenged.

There is a proposal to create a new layer of transparency and accountability to the judiciary as exists in all other areas of public life.

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

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

The proposal to create a register of interests for Scotland’s judges’ is also backed by the highly talented individuals who were appointed to provide oversight of judicial complaints – Scotland’s first Judicial Complaints Reviewer (JCR) – Moi Ali, and the current JCR – Gillian Thompson OBE.

The full transcript of evidence from former JCR Moi Ali to the Scottish Parliament during her term as Judicial Complaints Reviewer can be found here: Evidence from Scotland’s Judicial Complaints Reviewer Moi Ali to Public Petitions Committee on Petition 1458 Register of Interests for Scotland’s Judiciary, video footage of the hearing can be viewed here:  JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests.

Read the full report & transcript of JCR Gillian Thompson’s evidence to the Scottish Parliament’s Public Petitions Committee here: REGISTER, M’LORD: Former top judge Brian Gill called to Scottish Parliament as Judicial watchdog tells MSPs – Judges should declare their interests in public register.

JUDICIAL REGISTER: What interests are currently declared by Scottish judges?

The latest declarations by a select few powerful judges who control the running of Scotland’s Courts – is more revealing in what is missing from the limited disclosures in the 2016 annual report of Scottish Courts and Tribunals Service (SCTS).

Ruling over our courts in their ermine robes – in some cases decades longer than any Prime Minister could hope to remain in office – the handful of judicial declarations after years on the bench and millions in taxpayers cash – are even less than newly minted msps cobble together in their first few weeks at Holyrood.

Decades of near £200K taxpayer funded salaries produce singular declarations for a handful of judges, while the other 700 members of Scotland’s judiciary declare not one single item.

This year, Scotland’s current top judge, the Lord President & Lord Justice General – Lord Carloway – (real name Colin Sutherland), has but one declaration (Trustee, Scottish Arts Club) – dwarfing the vast listing of directorships & positions of his predecessor – Lord Brian Gill.

Lord Carloway (62) was appointed to the Court of Session since 2000. Sixteen years later, and now in the top job – his salary is currently listed in the UK Government guidance on judicial salaries as of 1 April 2016 as £222,862.00.

Another judicial member of the SCTS Board – Lady Smith (61) was appointed to the Court of Session in 2001. Fifteen years later, her salary as a judge of the inner house of the Court of Session is listed by the UK Government as £204, 695.00.

Lord Brian Gill (74) – appointed to the Court of Session in 1994, ‘retired’ from his judicial tenure in Scotland as Lord President 21 years later in June 2015 – on a salary of £220,665.00.

The full list of declarations for the few judges who declare ‘some’ of their interests are as follows:

Rt. Hon. Lord Gill: (from 1 April to 31 May 2015) Director of Scottish Redundant Churches Trust, a company limited by guarantee registered in Scotland (SC162884), Director of the Royal School of Church Music, a company limited by guarantee registered in England (Reg’d No 250031), President of the Royal Society for Home Relief to Incurable, Edinburgh, Trustee of the Columba Trust: a trust for the benefit of the Roman Catholic Church in Scotland, Trustee of the Royal Conservatoire of Scotland Endowment Trust: a trust for the benefit of RCS and its students, Trustee of the Royal Conservatoire of Scotland Trust: a trust for the benefit of the RCS and its students, Trustee of the Royal School of Church Music: a registered charity for the promotion of church music in the Christian Churches (Reg No 312828) Vice President of the Royal Conservatoire of Scotland, Chairman of Council, Royal School of Church Music

Rt. Hon. Lord Carloway: Trustee, Scottish Arts Club

Rt. Hon. Lady Smith:  Chair and Trustee – Royal Scottish National Orchestra Foundation, President and Trustee – Friends of the Music of St Giles Cathedral, Honorary Bencher – Gray’s Inn

Sheriff Principal Duncan Murray: Commissioner, Northern Lighthouse Board, Trustee Kibble Education and Care Centre

Sheriff Iona McDonald: Deputy Lieutenant for Ayrshire and Arran, Partner in property rental firm

Sheriff A Grant McCulloch: Chair West Fife Education Trust, Chair Relationship Scotland – Couple Counselling Fife, Committee Member Cammo Residents Association, Chair – Discipline Committee ICAS

Johan Findlay JP OBE Honorary Sheriff Justice of the Peace

Dr Joseph Morrow QC: Lord Lyon King of Arms, Member of Judicial Council, Trustee, Munday Trust, Dundee Trustee, Kidney Trust, Dundee Trustee, Tealing Community Hall Legal Assessor, South Episcopal Church President, Society of Messengers at Arms President, Scottish Genealogical Society Patron, Scottish Family History Society

Dr Kirsty J Hood QC: Self Employed Advocate Regular ad hoc employment with the University of Edinburgh – delivering seminars on one of the LLB courses, Regular ad hoc employment with the University of Glasgow – delivering lectures/seminars on one of the LLB courses, Contributor of updates to “Scottish Lawyers Factbook” (W Green. Publishers), Clerk of Faculty – Faculty of Advocates (non-remunerated) Member of the Scottish Committee of Franco-British Lawyers Society (non- remunerated)

Simon J D Catto: Member Gateley (Scotland) LLP: Head of Litigation, Member of Cornerstone Exchange LLP, Member of Cornerstone Exchange No2 LLP

Professor R Hugh MacDougall: None Eriska Trust, Cunningham Trust, Cross Trust, St Columba’s Hospice, Visiting Professor University of Edinburgh

Joe Al-Gharabally: Ernst & Young

Anthony McGrath: (from 1 April 2015 to 31 December 2015) Saltire Taverns Ltd, Consultation and mentoring assignment with Cantrell & Cochrane PLC. This includes sitting on the commercial Board of a subsidiary called The Shepton Mallet Cider Mill based in Somerset.

Col. David McIlroy: (from 1 January 2016) Independent Prison Monitor

Eric McQueen: Member of the Scottish Civil Justice Council

In August this year, DOI reported on the shareholdings of members of the same SCTS Board, in an article here: STILL BANKING, M’LORDS: Judicial quango in charge of Scotland’s Courts & Tribunals remains mired in financial links to Banks, investment funds, insurance, property & corporate vested interests

The current Scottish Courts and Tribunals Service Board Register of Shareholdings reveals the following declarations of shareholdings:

Lord President – Rt Hon Lord Carloway: None
Lord Justice Clerk – Rt Hon Lady Dorrian: None
President of Scottish Tribunals – Rt Hon Lady Smith: Artemis Fund Managers, Barclays, Blackrock AM, Brown Advisory, Goldman Sachs, Global Access, Henderson Investment, Ishares PLC, JP Morgan, Lazard Fund Managers, Pimco Global, Vanguard Funds PLC, Fundrock Management CO Gsquaretrix.
Sheriff Principal Duncan L Murray: None
Sheriff Iona McDonald: None
Sheriff A Grant McCulloch: None
Johan Findlay OBE JP: Aviva, Vodaphone, Santander, Unilever, Norwich Union, Legal & General, Fidelity Funds Network, Lloyds Banking Group, Thus Group, HBOS, Trafficmaster, Standard Life.
Dr Joseph Morrow QC: None
Lord President – Rt Hon Lord Gill (note: Lord Gill retired on 31 May 2015 and was succeed by Lord Carloway). :Henderson UK Growth Fund Retail Class Acc, Newton Global Equity Fund, Aviva Investors UK Equity Fund, Scottish Widows UK Growth Sub-Fund, HSBC Balanced Fund (Retail Acc), Royal Mail Plc, TSB Group Plc, Urban and Civil Plc, Vestry Court Ltd.

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

 

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JUDICIAL REGISTER: Scottish Parliament probe on judges’ register of interests hears from top Law Professor – room for widening transparency to include more than pecuniary interests, current recusals register is not complete.

Register of judges’ interests good for transparency. A TOP legal academic has told the Scottish Parliament’s Public Petitions Committee there is room for improvement in proposals to create a register of interests for Scotland’s ultra secretive judiciary as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary

In a written submission to MSPs, Professor Alan Paterson of the University of Strathclyde told the Public Petitions Committee “in terms of accountability there is a clear link between the thinking behind calls for a Register of Judicial Interests and the concept of Judicial Recusal”.

However, the Law Professor criticised the weakness of content of the current “Recusal Register” – set up by Lord Gill as a result of a private meeting with MSPs.

Professor Paterson told MSPs: “The Public Register of Judicial Recusals is indeed to be welcomed but it only records the cases in which Scottish judges have actually recused themselves, not the cases in which they have been asked to recuse themselves and have declined to do so, far less those in which they might reasonably have been asked to recuse themselves but were not.”

“In short, we cannot always tell if judges are recusing themselves or declining to recuse themselves in the right cases. One measure which might assist with that issue is to ask whether the decision as to recusal should be left to the judge who has been challenged.”

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

A full debate in Holyrood’s main chamber 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 widely supported by MSPs from all political parties.

The written evidence from Professor Paterson to MSPs comes after the Petitions Committee were informed of the Law Professor’s work on judicial transparency.

Published as quotes on the Scottish Parliament Petition Committee’s website, references from a publication by Professor Paterson: “Lawyers and the Public Good: Democracy in Action” – give an account of how registers of interest could enhance judicial transparency.

In the book, Professor Paterson writes: “Slightly surprisingly, the justices of the UK Supreme Court, who have rightly in my view been praised for being more transparent on a range of fronts than the House of Lords, have chosen on this front to be less transparent than they were in the House. In the House they were subject to a Register of Interests, but  in  February  2010s5 they indicated that they  had  decided  not  to  have  a Register of Interests in the Supreme Court since (1) other judges in the United Kingdom do not have to complete a Register of Interests and (2) it would not be appropriate or indeed feasible for there to be a comprehensive register of the interests of all the justices. With the greatest of respect to the justices, I wonder if they have got this one right.”   

“The Supreme Court along with the rest of the (senior) judiciary is an arm of government, and democratic accountability normally means that we expect those who govern us to declare  their  interests  –  and not just on an as and when basis. A detailed Register of Interests might even have obviated the Pinochet affair.”

“My third route to enhancing the accountability of the judiciary is to introduce greater measures of disclosure and transparency. Each and every justice of the US Supreme Court has to complete a detailed annual return setting out all their financial interests, including all shareholdings and offices held in other organisations. Moreover, when they have been nominated for appointment they are  required to complete a very detailed questionnaire  about  their interests, publications and membership of organisations whether it be the masons, churches or golf clubs (single sex or otherwise).” 

“Recusal is a tricky area and I’m not sure that the answer is always to leave it to the judge who has been challenged to determine whether he or she has a disqualifying interest. I am confirmed in this   line of thinking by Grant Hammond, the judicial author of what is now the leading textbook in the area. The legal test is that laid down in Porter v. Magill* namely, would the hypothetical fair-minded, fully informed independent layperson having  considered the facts conclude that there was a real possibility that the tribunal was biased. My difficulty  is  how  the  judges  are  to  know  the  answer to that question.”

PE1458/XX Judicial Register of Interests Petition PE1458

Writing in a letter to the Public Petitions Committee prior to the summer recess, Professor Patterson told MSPs: I refer to your letter of 18 March 2016 requesting that I write to you indicating my views on the action called for in the petition. I am not sure that I have a great deal to add to what I said in my Hamlyn lecture – A Paterson, Lawyers and the Public Good (Cambridge University Press, 2012) at pp.152-4. I indicated there, that at least at the level of final appeal courts there was an argument for enhancing the accountability of the judiciary by introducing greater measures of disclosure and transparency.

Each and every Supreme Court justice in the US Supreme Court has to complete a detailed annual return setting out their financial interests including gifts and hospitality. When appointed they also have to complete a comprehensive questionnaire about their interests, publications and memberships of clubs and organisations (including the Masons).  I am not aware that these requirements have caused particular problems in the USA.

When they were members of the House of Lords, the Law Lords had to complete a register of interests (which has since been considerably strengthened) and it was therefore a surprise to me that these same judges when they became UK Supreme Court Justices declined to have a Register of Interests, a position which they still adhere to. This despite the fact that Lord Hoffmann by failing to declare his involvement with Amnesty International (which might now appear in a Register of Interests) precipitated an unprecedented crisis in the House of Lords, the aftermath of which was felt for nearly a decade.

That said, whether a Register of Judicial Interests which is limited to pecuniary interests would be a worthwhile introduction for the Court of Session and the Sheriff Court is a difficult issue (as the evidence provided to the Petitions Committee has demonstrated) and one on which I am not sure I have a concluded view.

However, in terms of accountability there is a clear link between the thinking behind calls for a Register of Judicial Interests and the concept of Judicial Recusal. Here I think there is room for improvement in Scotland, particularly if there is to be no Register of Judicial Interests. 

The Public Register of Judicial Recusals is indeed to be welcomed but it only records the cases in which Scottish judges have actually recused themselves, not the cases in which they have been asked to recuse themselves and have declined to do so, far less those in which they might reasonably have been asked to recuse themselves but were not.

In short, we cannot always tell if judges are recusing themselves or declining to recuse themselves in the right cases. One measure which might assist with that issue is to ask whether the decision as to recusal should be left to the judge who has been challenged.

I am confirmed in this line of thinking by Grant Hammond, the judicial author of what is now the leading textbook in the area Judicial Recusal (Oxford: Hart Publishing, 2009).

Just as we no longer leave decisions on contempt of court which relate to attacks on the judge to be decided by the judge in question, so it could be argued that requests for judicial recusal should be handled on an expedited basis by a bench of at least two different judges.    

I hope these thoughts have been of assistance. Yours sincerely Professor Alan Paterson OBE

While Professor Paterson said in his letter to MSPs he had no concluded view on whether a register limited only to pecuniary interests of judges would be worthwhile, it is widely understood in the media the proposals before the committee do actually call for a much wider and encompassing register of interests for the judiciary – similar to the same registers of interest which exist for politicians and public bodies across the country.

The petition’s call for a more complete register of interests was brought to the fore during an evidence session with Lord Brian Gill held in November 2015 – during which Committee member John Wilson made it clear in questions to the judge that any register of judicial interests proposed by the petition was expected to include much more than pecuniary interests.

The lengthy Scottish Parliament probe on judicial interests – now about to enter it’s fourth year – has previously heard evidence from key players in the justice system who all support the introduction of a register of judicial interests.

During an evidence session held at Holyrood in September 2013 – Moi Ali, Scotland’s first ever Judicial Complaints Reviewer (JCR)- backed the creation of a register of judicial interests – providing MSPs with a powerful first hand, honest and highly detailed account of the workings of Scotland’s judiciary and lack of judicial transparency & accountability.

Current Judicial Complaints Reviewer Gillian Thompson also backed plans to require judges to declare their interests, during an evidence  session of the Public Petitions Committee held in June 2015.

However, the move to create a register of judges’ interests was bitterly resisted by retired top judge Lord Gill, who spent two years of his short three year term as Lord President –  fighting the Petitions Committee on moves to have him appear before MSPs to give evidence.

Diary of Injustice recently reported on written evidence provided by Scotland’s latest top judge – Lord Carloway to the Public Petitions Committee on plans to require judges to declare their interests.

Lord Carloway (real name: Colin Sutherland) is a known opponent of the judicial transparency proposals.

Earlier this year, Lord Carloway told MSPs: “The proper administration of justice could be inhibited by the disclosure of the judiciary’s otherwise confidential financial arrangements. In that connection, there is the possibility that an individual judge may be the subject of misconceived criticism, deriving from the disclosure of personal financial information, where those interests are tangential and de minimis.”

The move by Scotland’s latest Lord President to undermine the Scottish Parliament’s efforts to increase judicial transparency follows a bitter three year campaign against the petition – led by Carloway’s former boss – Lord Brian Gill – which culminated in an ‘aggressive’ evidence session with the former top judge at Holyrood in November 2015.

Lord Gill – who spent two of his three year term fighting the judicial transparency proposals – was dubbed “Lord No-No” for his refusals to give evidence to MSPs on judges’ undeclared links to big business, secret criminal records & hidden wealth, handed the claim to the Scottish Parliament.

Refusing several invitations from MSPs to attend the Petitions Committee in person, the top judge sent a series of letters to MSPs – demanding the judiciary remain exempt from the public’s expectation of transparency in Government and those in public life.

As the petition was debated at Holyrood in the Lord President’s absence, it was revealed Lord Gill billed taxpayers for a five day state visit to Qatar. The top judge also travelled to numerous other international destinations – all charged to taxpayers.

An investigation by the Scottish Sun newspaper also revealed Scotland’s top judges spent £26,000 on thirty three international trips funded by taxpayers – including journeys to destinations such as Russia, Israel, Switzerland,Germany, France, Bulgaria, Lithuania.

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

 

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CRIME SECRET: Crown Office flouting of Freedom of Information laws results in intervention by Information Commissioner – as Police, Prosecutors & Scottish Ministers obstruct public interest disclosures

Crown Office investigated over disclosure delays. PROSECUTORS based at the Crown Office & Procurator Fiscal Service (COPFS) in Edinburgh have become so resistant to Freedom of Information legislation – officials at the £110m a year public body have in some cases, taken up to six months to reply to Freedom of Information requests.

Details of the delays – which some contend were deliberate – came to light in documents disclosed by the Scottish Information Commissioner (SIC) – Rosemary Agnew – who has been forced to conduct a number of ‘interventions’ with public bodies across Scotland after serious failures in adherence to Freedom of Information legislation came to light.

Details released by the SIC – Public bodies subject to interventions by Information Commissioner – reveal in one of the ten interventions conducted by the SIC since September 2015 – the Crown Office was investigated for multiple and lengthy delays of many months per request in responding to Freedom of Information requests.

The secretive, almost unaccountable public body currently run by Lord Advocate Frank Mulholland – which manages criminal prosecutions across Scotland is now subject to monthly monitoring as a result of the SIC’s investigations and meetings between senior staff from the Scottish Information Commissioner’s office and the Crown Office.

A document obtained from the SIC states: “Head of Enforcement (HOE) and Deputy Head of Enforcement (DHOE) met with COPFS 8/1/16 to highlight issues. Agreed to meet in 07/16 to discuss progress. HOE also reviewing COPFS procedures. COPFS subject to monthly performance monitoring.”

Allegations have since been raised by journalists a deliberate policy of delay was being orchestrated by COPFS staff in relation to FOI requests

And, in a sinister move by prosecutors – a number of enquiries to the Crown Office in relation to requests for media statements on activities including large fraud investigations involving individuals and accused persons known to have links to Crown Office personnel – have resulted in reporters being denied media quotes and told to turn their communications into FOI requests.

Monitoring of how the Crown Office complies with FOI legislation comes at an unwelcome time for prosecutors, after it was revealed Crown Office staff & prosecutors have been charged with serious criminal offences, reported here:  CROWN CROOKED: Crown Office crime files reveal Scotland’s Prosecutors & staff charged with Drugs crimes, Police assault, threats & perverting the course of justice.

A number of other public bodies are named in the documents including, Police Scotland, Scottish Ministers, the Scottish Fire and Rescue Service, NHS Scotland Loch Lomond and The Trossachs National Park Authority & Falkirk Council.

In the data release it is revealed Police Scotland scored the most number of interventions from the Scottish Information Commissioner’s office, totalling three interventions at various levels.

In one case, details release by the Scottish Information Commissioner reveal Police Scotland maintained a practice of sending out locked pdf documents with security protocols forbidding their printing.

A file disclosed by the SIC in response to an FOI request stated: “Asked Police Scotland to change its practice and stop sending us (and applicants) locked pdf documents, which can’t be printed out.. We are still waiting for an accessible copy of a document required for case 201501763.”

“Police Scotland has raised the issues of locked documents and undated letters internally.” The issue is subsequently referred to as: “Issue resolved”.

In a Level two intervention with Police Scotland, files released by the Scottish Information Commissioner reveal details of Police Scotland’s information publication scheme.

The SIC asked Police to conduct a “Review of publication scheme (guide to information) from time to time. Proactive publication in the public interest.”

Police Scotland was then “Asked to review guide to information due to broken links etc. and currency of information.”

From information now made public by the SIC, the issue was raised with Police Scotland on 12/11/16 and a reminder issued on 18/02/16. The SIC appears to be awaiting an outcome.

In one of two interventions with the Scottish Government, documents disclosed by the SIC revealed there was a concern at the lack of knowledge of Freedom of Information at the Scottish Government.

Details of the level one intervention with Scottish Ministers revealed: “Meeting with the Office of the Office of the Chief Researcher, instigated by them. Recorded as a level 1 intervention as concerns about level of FOI knowledge within major area of Government.”

“Note of the meeting is on file.Practice areas:- who is covered by FOI. Seemed unaware that Universities are- Section 60 Code IRO contracts and procurement- sections 27, 33 and 36 specifically.”

Power to Intervene:

Powers granted to the Commissioner by the Freedom of Information (Scotland) Act (FOISA) allow the Scottish Information Commissioner to intervene where it is identified that an authority’s practice is or may be: (i) in breach of its statutory duties under the Freedom of Information (Scotland) Act 2002 (FOISA) and/or the Environmental Information (Scotland) Regulations 2004 (the EIRs); (ii) falling short of Government guidance, particularly the Section 60 Code.

Anyone who makes a Freedom of Information request to a public authority can request an intervention by the Scottish Information Commissioner, if the public authority in question does not adhere to FOI legislation.

The SIC’s website states: “All interventions will be appropriate and proportionate, and based on robust and accurate evidence.The term “Intervention” covers a range of activities: from providing advice and assistance to authorities in relation to good practice, to formal enforcement action carried out under the Commissioner’s Enforcement Policy.”

Levels of interventions conducted by the Scottish Information Commissioner:

Level 1: These are minor failures to follow good practice. In these cases, we will provide informal advice and assistance to authorities, pointing out the failure and suggesting remedial action. In such cases, individual officers are empowered to give advice to authorities if a relevant failing is identified as a result of an application or enquiry to us and to decide what follow-up action is required.

Level 2: These are ongoing failures by an authority to follow good practice in a specific area of practice. In these cases, an appropriate manager (DHOE, HOE, HOPI or the SIC) will contact the authority to discuss the issues and suggest remedial action. Level 2 interventions will require follow-up contact with the authority to ensure that appropriate action has been taken.

Level 3: These are more serious or systemic failings which have been identified and we do not consider the issue can be rectified without requiring the authority to put in place an action plan to address the issue. In such cases we may invite an authority to carry out a self- assessment using one or more of the modules in our self-assessment toolkit.

Level 4: These are when an authority consistently fails or refuses to comply with FOISA, the EIRs or statutory guidance despite previous interventions by us. In these cases, we may issue (or give warning of our intention to issue) a practice recommendation in terms of section 44 of FOISA specifying the steps that an authority must take in order to conform with its duties under Government guidance. Alternatively, we may issue (or give warning of our intention to issue) an enforcement notice under section 51 of FOISA requiring an authority to take specified steps to comply with Part 1 of FOISA or with the EIRs. We may also decide to carry out an on-site assessment of an authority’s arrangements for handling information requests.

 

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M’LADY JUSTICE CLERK: Lady Dorrian becomes first female judge appointed to position of Lord Justice Clerk – second most powerful judge in Scotland

First female judge appointed Lord Justice Clerk. FOR THE first time in the history of Scotland’s legal system, a female judge has been appointed to the role of Lord Justice Clerk, the second most powerful position in Scotland’s judiciary.

Lady Leonna June Dorrian (58), who is currently a judge of the inner house of the Court of Session – will take up her appointment as Lord Justice Clerk on 26 April 2016, the day of her installation.

The post of Lord Justice Clerk comes with a salary of £213,125 a year.

The Lord Justice Clerk also holds the office of President of the Second Division of the Inner House of the Court of Session, and, by virtue of the post, is Chair of the Scottish Sentencing Council.

The appointment of Lady Dorrian to the second most powerful judicial position comes after the recent appointment of the previous holder of the office of Lord Justice Clerk – Lord Carloway – to the top role of Lord President & Lord Justice General of the Court of Session.

During the six month search for a new Lord President which took place after the sudden retirement of Lord Brian Gill in May, 2015 – Lady Dorrian was appointed to a selection panel convened by the First Minister Nicola Sturgeon to interview applicants for the position of Lord President, reported in further detail here: To play the President – Hunt begins for Scotland’s next top judge

The panel, which comprised Sir Muir Russell – Judicial Appointments Board for Scotland, Mrs Deirdre Fulton – Judicial Appointments Board for Scotland, Rt Hon Lord Reed – Justice of the Supreme Court of the United Kingdom,  Rt Hon Lady Dorrian – Senator, Inner House of the Court of Session – concluded their deliberations with a recommendation Lord Carloway (real name Colin Sutherland) be appointed to the position of Lord President – reported in further detail here: Top judge of Parliament House: Lord Carloway appointed as Scotland’s Lord President

With the ascension of Lord Carloway to the post of Lord President, the move required the appointment of a new Lord Justice Clerk.

A selection panel to interview candidates for the role was again convened by the First Minister earlier in January 2016 – the panel comprising of Rt Hon Lord Carloway – Lord President, Sir Muir Russell – Judicial Appointments Board for Scotland, Alison Mitchell – Judicial Appointments Board for Scotland, The Hon Lady Stacey – Senator of the College of Justice to select a candidate for the position of Lord Justice Clerk.

Lady Dorrian was then nominated by the First Minister Nicola Sturgeon to Her Majesty the Queen – after taking account of recommendations made by the selection panel constituted under the Judiciary and Courts (Scotland) Act 2008 .

The panel which made the recommendations included Lord Carloway – who had been nominated for the position of Lord President by the previous panel which Lady Dorrian was a member of.

Lady Dorrian – Biography:

Lady Dorrian is a graduate of the University of Aberdeen and was admitted to the Faculty of Advocates in 1981 before becoming Standing Junior Counsel to the Health and Safety Executive and Commission between 1987 and 1994.

She served as Advocate Depute between 1988 and 1991, and as Standing Junior to the Department of Energy between 1991 and 1994. In 1994, she was also appointed Queen’s Counsel. Between 1997 and 2001 she was a member of the Criminal Injuries Compensation Board. Lady Dorrian was appointed as a judge of the Supreme Courts in 2005, having served as a temporary judge since 2002. She was appointed to the Inner House in November 2012.

SECRETLY SELECTING A PRESIDENT, SO SECRETLY:

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

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

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

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

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

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

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

Scotland’s judiciary faces a testing time as calls grow for judges to apply the same levels of transparency to themselves as is required of all other branches of Government, the justice system and those in public life.

SPOTLIGHT ON JUDICIAL INTERESTS SECRECY:

Scotland’s current Lord President – Lord Carloway is to be asked to give evidence to the Scottish Parliament’s Public Petitions Committee in connection with three year probe on proposals to require judges to register their interests, as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The petition calls for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

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

 

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EIGHT LETTERS, M’LORD: Top judge who branded media & public ‘aggressive’, declared judicial transparency ‘unworkable’ – will finally give evidence to Holyrood probe on judges’ interests register

Lord Gill to finally face MSPs probe on judicial interests. SCOTLAND’S former top judge who spent two of his three year term as Lord Justice General waging a bitter fight against proposals to create a register of judges’ interests – will appear before MSPs tomorrow – Tuesday 10 November 2015.

Lord Brian Gill (73) – Scotland’s longest serving judge who suddenly retired in May 2015 – after serving three years as Lord President & Lord Justice General, will finally give evidence to Holyrood’s Public Petitions Committee on proposals to require judges to declare their financial interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The proposals, widely backed by MSPs after the issue was debated in the Parliament’s main chamber last October 2014 – Debating the Judges – call for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Although Gill refused two previous invitations to appear before the Public Petitions Committee –  the top judge did not shy from lengthy written tirades against the Scottish Parliament’s curiosity on why judges are so protective of their undeclared interests.

In a total of eight letters spanning the better part of Lord Brian Gill’s tenure as Lord President, the top judge hit out against everyone from politicians to the media amid calls for judicial transparency and a register of judicial interests.

At one point, Gill branded the media, court users, public & litigants as “aggressive”.

And, in between Lord Gill’s global jet setting taxpayer funded tours including a five day visit to Qatar – the top judge pointedly wrote to the Public Petitions Committee implying he may consider withholding judicial cooperation with Scottish Parliament committees if he was pushed on the matter.

WHEN EIGHT LETTERS TOLL – Letters from a Lord President:

Lord Gill’s first letter of 5th February 2013 to the Public Petitions Committee put the top judge’s views squarely against the creation of a register of judicial interests.

Transparency good for everyone else, except judges – Lord Gill wrote of his disdain for equal application of transparency to judges: “The petition appears to proceed on an apparent misconception that equal treatment in terms of disclosure obligations of each of the three branches of Government is desirable. The three branches have significantly different roles to perform. The judicial role requires independence and impartiality in relation to the individual case which the judge has to decide. In this context, tire potential for conflict of interest or apparent bias extends beyond pecuniary interests alone. The judge’s duty of disclosure is more far-reaching than a bare listing of particular pecuniary interests identified by legislation as warranting disclosure. For example, a judge’s disclosure duties, as set out in the Statement of Principles of Judicial Ethics, will extend to material relationships.”

Oaths & handshakes run the courts, not transparency – says top judge.

Lord Gill claimed there was no need for transparency because judges are subject to oaths and rules – written, and approved by – judges.

Lord Gill wrote: “Another reason why there is no practical need for this measure is that there are currently sufficient safeguards to ensure that judicial impartiality is maintained. The current safeguards in place in Scotland are established by the terms of the Judicial Oath, the Statement of Principles of Judicial Ethics for the Scottish Judiciary and the Judiciary and Courts (Scotland) Act 2008.”

Giving an indication of the sheer scale of undeclared judicial interests, Lord Gill admitted Judges have so many interests & earnings, it would be impossible to list them all.

Gill wrote: “In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.”

Lord Gill claimed those seeking judicial transparency must be aggressive. The top judge wrote: “The introduction of such a register could also have unintended consequences. Consideration requires to be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician.

Lord Gill went onto claim if transparency were applied to the judiciary, this would make it impossible to recruit judges.

Lord Gill wrote: “The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.”

After further enquiries from MSPs who issued the top judge with invitation to give evidence before the Scottish Parliament, Lord Gill wrote a second letter of 2 April 2013 to the Public Petitions Committee.

In his letter, Lord Gill claimed that since European judges did not disclose their vast interests, neither should Scottish or UK judges.

Gill wrote: ““In my written evidence I referred to the Council of Europe Group of States against Corruption’s (GRECO) Fourth Evaluation Round Report, which was then unpublished. This report has just been published.”

Eager to avoid giving evidence in public and facing questions on why judges wealth & interests must remain a secret, Lord Gill also refused to attend and give evidence.

The top judge wrote: “I hope that you will not think it discourteous of me to decline your invitation. As your fellow members noted in their discussion, I have provided a detailed response. On reflection, I think that I could not add any material points to the terms of my response.”

The unprecedented move by Lord Gill to refuse an invitation to give evidence before the Scottish Parliament and face questions from MSPs was widely condemned and featured in several media reports.

Lord Gill’s third letter of 28 May 2013 to the Public Petitions Committee refused a second invitation to appear before MSPs.

The top judge clearly did no wish to account for his opposition to the creation of a register of judicial Interests.

In his letter to Committee Convener David Stewart, Lord Gill implied he may have to restrict judicial cooperation with Scottish Parliamentary Committees.

Gill wrote: Judges have from time to time given evidence to committees of the Scottish Parliament on matters that affect the administration of justice in Scotland. I hope that that has been helpful in the legislative process. Judicial participation in the work of the committees must however be kept within prudent limits.”

The top judge went on to claim loopholes in the Scotland Act prevented members of the judiciary being called to give evidence before MSPs.

The top judge said in his letter: “Section 23(7) of the Scotland Act provides inter alia that the Parliament may not require a judge to attend its proceedings for the purposes of giving evidence. This is not a loophole. It is a necessary part of the constitutional settlement by which the Parliament is established. Its purpose is to protect the independence of the judiciary, a vital constitutional principle that is declared in section 1 of the Judiciary and Courts (Scotland) Act 2008.”

“When a committee invites a judge to give evidence before it, I have to decide whether the subject matter might infringe the principle of judicial independence; and whether the evidence required could be satisfactorily given in writing.”

Venting his frustration with the Scottish Parliament’s investigation, Gill went on to write: “In my correspondence with you I have set out carefully why I believe that a register of interests for the judiciary is both unnecessary and unworkable. I have directed you to an independent scrutiny of the judiciary in the United Kingdom that has on two occasions considered and rejected the need for such a register.”

Following on from an unprecedented private meeting between the Convener & Deputy Convener of the Public Petitions Committee and the Lord President, Lord Gill’s fourth letter of 21 February 2014 took up the subject of judicial recusals.

The top judge announced in his letter his staff had devised a method for listing recusals of judges in cases where an interest of a judicial figure meant they could not hear the case.

The information accumulated from judicial recusals would also be regularly published – a first in Scotland.

Lord Gill wrote: “When we met on you asked me to consider whether it would be possible to make publicly available information about cases in which a judge or sheriff formally recuses him or herself from hearing a case.”

“I am pleased to say that my officials have devised a means by which this can be achieved. Court Clerks will inform the Judicial Office for Scotland when a judge or sheriff has to recuse. The reason for recusal will be provided. The fact of recusal and the reason for it will appear on the Judiciary of Scotland website (http://www.scotland-judiciary.org.uk).

“I intend to commence the collection of information from 1 April 2014 to give time for the administrative arrangements to be put in place. The website will be updated as notification of recusal is received.”

Lord Gill’s fifth letter of 5th June 2014 took an abrasive tone.

The top judge set out to challenge the views of Scotland’s first Judicial Complaints Reviewer – Moi Ali – who supported the introduction of a register of judicial interests.

Clearly angered by wider support for a register of judicial interests, Lord Gill wrote in his letter: “I do not share Ms Ali’s view that a register of interests is essential, I do not believe that such a register is necessary. I set out my views in my letter to you of 5 February 2013. My views remain the same.”

Gill also claimed there was no evidence of public concern about the judiciary: “Ms Ali suggests that a failure to institute a register of judicial interests will create suspicion, and that this will in turn undermine judicial credibility. I am not aware of any recent evidence that there is public concern about the integrity of the judiciary. In my view the terms of the judicial oath, the Statement of Principles of Judicial Ethics and the provisions of the Judiciary and Courts (Scotland) Act 2008 for the regulation of judicial conduct are effective safeguards that enjoy public confidence.”

The exasperated top judge also had a go at suggestions the rules on judicial complaints were not fit for purpose.

Gill wrote: “The Judicial Complaints Reviewer suggests that the rules about complaints against the judiciary – the Complaints about the Judiciary (Scotland) Rules 2013 – are not fit for purpose. I disagree. Our experience of operating the Rules, since they were introduced in 2011, is that they provide a system for review that effectively filters out complaints that are without substance, while providing an effective hearing mechanism in others.

The unconvincing two page letter from the top judge disagreed with every single point raised by the JCR on transparency and judicial interests. Gill even opposed the Judicial Reviewer’s views on a clean up of the rules around judicial complaints.

In a sixth letter from Lord Gill to the Public Petitions Committee, dated 1st April 2014, the top judge, annoyed by questions over why an existing register of interests for Scottish Court Service Board members could not be applied to the entire judiciary, claimed there were different factors at play.

Again, an abrasive tone by the top judge featured in his written comments to MSPS.

Lord Gill said: “I have carefully set out for the Committee my reasons for believing that a register of interests for members of the judiciary is unnecessary. My view is shared by the Scottish Government, the UK Government, and the Chief Justices in the other jurisdictions of the UK. It is a view that has been endorsed by external international scrutiny through the work of Council of Europe’s Group of States against Corruption (GRECO) in its evaluation reports in 2001 and 2014.”

The position of the judicial office holders on the board of the SCS is entirely different. The requirement of those judicial office holders who are members of the SCS to register their interests arises in the context of their membership of a public body. The disclosure of their interests arises from their work as board members, which may involve the placing of contracts and employment questions. It is not related to their holding judicial office. As members of the SCS they do not exercise judicial functions.”

Lord Gill again pointed to the lack of declarations of European judges as an example allowing members of Scotland’s judiciary to withhold any information of their wealth, business links & interests from public disclosure.

The seventh letter from Lord Gill to the Public Petitions Committee, dated 21 November 2014 – furnished MSPs with details of judicial recusals.

The top judge gave three examples of recusal matters in his letter to MSPs.

Lord Gill wrote: “The first group of cases are cases where judges or sheriffs realise, in advance of the hearing, that they have a personal interest in the case or have had some personal connection with a party or a witness and, without further ado, recuse themselves. This is by far the most common situation.”

“The second category are cases where judges or sheriffs realise that there is some factor in the case of which the parties may be unaware, that, while not necessitating recusal, might nevertheless cause them concern. In such situations, the appropriate procedure is for the judge or sheriff to draw the matter to the attention of the parties either before or at the outset of the hearing and invite their comments. If either party should suggest that the judge or sheriff should withdraw from the case, it will then be for the judge or sheriff to decide whether or not to withdraw. The legal principles affecting that decision are well established. In cases of this kind, it cannot be said that the judge or sheriff is recusing as a result of representations made by the bench. In reality, the recusal arises because of the initiative of the judge or sheriff in bringing the matter to the notice of the parties.”

“The third situation that could arise is where a judge or sheriff who has an interest that would justify recusal says nothing about it and thereafter has to recuse himself or herself when a party raises the matter. We have no record of any instance of this.”

Notably, not one recusal involved any disclosure of a substantial interest of a judicial figure.

And, underlying the lack of credibility of the current recusals register – not one financial or property related interest recusal of judges who earn up to £220K a year was provided to MSPs.

The eighth letter from Lord Gill to the Public Petitions Committee, dated 1 April 2015, was an eighty seven page summary on changes in the rules on judicial complaints – changes already branded window dressing by the media.

Again, fearing public questions from MSPs, Gill consigned himself to written claims the rules changes were a development after a consultation, conducted by Lord Gill himself.

Gill wrote: “I am pleased to inform you that we have today published the new Complaints About the Judiciary (Scotland) Rules 2015 and associated guidance. As you know the new Rules and guidance were developed following a consultation on the Rules. I also enclose my official response to the consultation and associated documents.”

“The new Rules and guidance for complainers simplify and streamline the process for dealing with complaints and make clear the matters that can properly be investigated.”

However, Moi Ali – Scotland’s first Judicial Complaints Reviewer criticised the rules as lacking.

Ms Ali said: “I conducted a detailed consultation of my own when I was Judicial Complaints Reviewer, speaking with those who had used the complaints process. They deemed it unfit for purpose at that time.”

Ms Ali continued: “I am disappointed that the thrust of my response to the Lord President, based on that feedback from ordinary Scots, has not been incorporated. I asked for more user-friendly, plain English Rules, but this has not happened. I also hoped that a mindset that welcomed complaints and recognised the genuine value of encouraging complaints would have shaped the new Rules, but instead the inbuilt deterrent to complainers remains. The new Rules are an opportunity missed.”

A few weeks after Lord Gill’s last letter to the Public Petitions Committee, Gill retired as Scotland’s top judge at the end of May.

During a meeting of the Public Petitions Committee in May, the outgoing top judge was chastised by MSPs for his role in protecting the vested interests of the judiciary.

Jackson Carlaw MSP (Scottish Conservative) commented during the Committee hearing: “I understand that the Lord President is due to retire in due course, and we will wish him well. He will leave knowing that he has managed to protect all the vested interests that he has so assiduously sought to represent in the conduct of this petition. As we will be hearing from Gillian Thompson, who is new to her position, it may even be that there will be more enlightened engagement with the Lord President’s successor, so I am all for keeping the show on the road.

On the conclusion of an evidence session at the Scottish Parliament in late June 2015 with Gillian Thompson, the new Judicial Complaints Reviewer – Lord Gill was invited for a third time to attend the Public Petitions Committee and give evidence on his opposition to judicial transparency and a register of judges’ interests.

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

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

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

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

 

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M’LORDS, REVISITED: Why Scotland’s wealthy, secretive, powerful & interest laden judiciary require transparency, independent oversight and a register of judicial interests

Scots judiciary require modern 21st century oversight. A DEGREE in quantum mechanics is not required to understand that the secretive closed world of Scotland’s all powerful judiciary requires a significantly greater level of transparency & accountability than the current antiquated set of rules and late night stag party sounding ‘oaths’ which loosely ‘govern’ the role of judges and their position at the top of Scotland’s justice system.

Not least due to the fact these same ‘rules’ and ‘oaths’ the judges hold in such high regard – are – mostly written by themselves, and vested legal interests.

When a small group of the most powerful in society, who earn staggering publicly funded salaries plus perks & pension pots to rival any banking executive, fly the world at taxpayers expense with big business tagging along to gather contracts in the wake of ‘respectable figures from the bench’ – and, when questions are asked of their interests – these same figures cast aside our democratically elected Scottish Parliament in the name of serving their own interests – it is time for change.

Not rocket science, right? We all get it.

Except of course, the judges, and those who have a vested interest or … something to hide.

Transparency – Good. Vested Interests – Bad.

Not a difficult equation. Certainly not one requiring a visit to a Physics laboratory.

One judge alone has done more than most for promoting the need for judicial reform – Lord Brian Gill.

Gill (73) – who dodged Holyrood more often than a pigeon dodges a Peregrine Falcon – held such disdain for transparency, the political process, and the same expectations, rules and regulations which apply to all others in public life, he just could not bear to apply those same standards to the judiciary.

The Lord President said so himself. Letter after letter to the Scottish Parliament. Threats, name calling, excuses, loopholes, blanking, it was all there, and in writing.

Never before did a country’s top judge become so aggressive towards the public’s general expectation of transparency.

And why? All because the judiciary were asked to disclose their interests. You know … like everyone else.

Time then, for the Scottish judiciary to be reminded they serve the wider community – the people. Scotland.

Not vested interests, not themselves, not their friends, Scotland. The whole of.

And, that with such unchecked power as the judiciary hold, comes the requirement for full transparency, and powerful oversight – without – of course – meddling vested legal interests.

A good start for the Scottish Government would be ensuring the Judicial Complaints Reviewer (JCR) has full and substantive powers to investigate the judiciary to – at least – the same level of scrutiny already existing in England and Wales, where the Office for Judicial Complaints publishes details of upheld complaints and cases can be appealed to the Judicial Appointment and Conduct Ombudsman.

And, don’t forget to register all your interests, M’Lords.

Here’s what others say:

The Sunday Mail newspaper reports:

BACK IN THE DOCK – NEW BROOM WANTS JUDGES TO OPEN UP

Second legal watchdog says judges’ refusal to support register of interests looks suspicious

Jan 18, 2015 By Mark Aitken

NEW judicial complaints reviewer Gillian Thompson has given backing for register despite protests from Scotland’s top judge, Lord Gill.

A LEGAL watchdog who quit after supporting a register of interest for judges has been backed by the woman who replaced her.

Moi Ali was appointed as the country’s first judicial complaints reviewer in 2011 but resigned last year claiming she had no power and got no co-operation from law chiefs.

She was also criticised by Scotland’s top judge, Lord Gill, over her support for a register of interest for judges.

But her successor Gillian Thompson has also given her backing for a register.

Holyrood’s petitions committee are considering a submission by legal campaigner Peter Cherbi for a judicial register of interests which could details gifts, hospitality and links to outside bodies such as law firms.

In a letter to the committee, Thompson wrote: “We live in an age in which transparency about interests and activities of those in the public eye is regarded as good practice.

“There is a perception that anything less is the result of attempts to hide things.

“In the case of judges, it is clear that court users and the public more widely seek reassurances of fairness and impartiality.”

Lord Gill has repeatedly dismissed calls for a register of interests.

But Cherbi said: “Two judicial complaints reviewers in a row have supported a register while Lord Gill suspiciously clings to secrecy and refuses to accept transparency must be applied equally to judges as it is to everyone else in public life.”

Sunday Mail:

WATCHDOG’S WITHERING ATTACK ON JUDICIARY

MY FINAL VERDICT ON JUDGES? A LAW UNTO THEMSELVES

Investigator says she got no co-operation and only met law chief once in three years

By Mark Aitken Political Editor Sunday Mail 07 December 2014

A former watchdog who probed complaints about legal chiefs has hit out at Scotland’s judges in her farewell report.

Moi Ali was appointed the country’s first ever judicial complaints reviewer in 2011 but announced her decision to quit earlier this year because she had no power and the role was “tokenistic”.

Her final report details complaints of alleged racial bigotry, bullying, lying, conflicts of interest and making secret recordings of meetings.

And Ali, who left the role in August, reveals Scotland’s top judge, Lord Gill,only met her once.

She said: “Unfortunately, there has been little interest in the positive difference that the JCR could make.

“Although I have had a good working relationship with the judicial office, I have met the Lord President just once in three years.

“My interactions with both the Lord President’s office and the judicial office have focused more on what I cannot do rather than what I can do and as such, an opportunity for whole system improvement has been lost.

Reform campaigner Peter Cherbi said: The current system of judges slapping each other on the back and dealing  with their own complaints is clearly unfit for purpose.

“Ms Ali found investigations by the judicial office were delayed for months, officials were confused as to their own procedures, and complaints were treated with the disdain.

“One complaint filed by a mother on behalf of her disabled son was kicked out because too much time had passed and the judge could have forgotten the events. There’s not much point in having judges who forget what they had for breakfast but can remember to pick up a £200,000 salary and all the expenses trappings of judicial office.”

Independent MSP John Wilson said:”It is up to the new justice Secretary to take a serious look at the report by Moi Ali and develop a system that is independent of the Lord President to bring confidence in the judicial review process.”

A judicial office spokesman said: “The judicial office has fully co-operated and will continue to work with the judicial complaints reviewer to take forward the recommendations of the Lord President’s consultation on the complaints process.

Sunday Herald:

Clash over probe into allegations of bullying in the justice system

Paul Hutcheon, Investigations Editor Sunday 7 December 2014

TWO of Scotland’s key legal bodies have clashed over an investigation into a member of the judiciary.

The fight is between the Judicial Office for Scotland (JOS) – headed by the country’s top judge – and the watchdog responsible for holding it to account.

The legal watchdog attacked the JOS for its handling of a probe into claims a judicial office-holder was guilty of bullying and of making covert recordings.

Complaints against judges, ­sheriffs and justices of the peace are handled by the JOS, which provides support to the Lord President.

The investigations are carried out by fellow members of the judiciary.

If a complainant is still unhappy, the Judicial Complaints Reviewer (JCR) can examine whether the probe complied with the rules.

Moi Ali, who recently stood down as the JCR after saying she did not have adequate powers, published her final annual report last week.

She produced details of an extraordinary case in which the JOS dealt with allegations of impropriety by a judicial office-holder. An unnamed organisation that “works closely with the courts” complained of bullying by a member of the judiciary, adding that the same figure had made secret recordings.

The organisation was not satisfied with the JOS probe into the case and contacted Ali.

On the bullying allegation, Ali said she was hampered after the “nominated judge” who carried out the first investigation failed to put all correspondence in the complaints file.

After the complainant asked for all tapes and transcripts obtained during the probe, the request was initially rejected.

Ali described this response a “an unnecessary lack of transparency that could damage external confidence in the investigation process”.

She also described as a “lack of even-handedness” the fact that the judicial officer-holder under investigation received an ­apology for delays in the case, but the complainant did not.

The organisation’s witnesses were also not interviewed.

The original complaint was not upheld by the JOS, but Ali concluded: “I was concerned about how the conclusion was reached that the allegations could not be substantiated in light of the evidence that I saw in the complaints file.”

On the recordings allegation, the judicial office-holder under investigation had said the tapes were not made “in any secret way”, although permission was not sought.

Ali believed this complaint should have been included as part of the other probe, or referred anew to the JOS, but she said: “Neither path was followed. The complaint was never investigated. No explanation was offered as to why not.”

In the two reviews Ali carried out, she found seven rule breaches.

Scottish Conservative chief whip John Lamont said: “In almost no other walk of life do you have an organisation which is only accountable to itself in instances like these.

“The public expectation is that – when there’s a case to answer – an independent or separate authority should be asking the questions.”

Scottish Liberal Democrat leader Willie Rennie said: “Moi Ali has previously reported weaknesses in the systems through which the public can complain about the conduct of the judiciary and seek redress.

“Some of the incidents reported suggest that those involved in the complaints process were more concerned with stopping Moi Ali from doing her job than behaving responsibly and responding to the issues that had been raised.”

A spokesperson for the ­Judicial Office said the recordings were made in court, not during meetings, adding: “The Judicial Office does not comment on individual complaints as the information is confidential. All complaints are fully investigated in accordance with the relevant rules.

“In respect of recording in court, it is open to the court to have proceedings recorded where it considers it to be appropriate.”

Sunday Herald:

 Judicial watchdog quits from ‘straightjacket’ role

Paul Hutcheon Investigations Editor Sunday 26 January 2014

SCOTLAND’S legal watchdog tasked with holding judges to account is to stand down after complaining that she has “no power to make things different and better”.

Moi Ali, the country’s first Judicial Complaints Reviewer (JCR), will not seek a second term because she believes her post is “tokenism”.

The JCR post was created by the Scottish Government to introduce an element of independence in the system of self-regulation for scrutinising judges.

However, Ali’s role is restricted to looking at whether the Judicial Office for Scotland (JOS) – the in-house body led by the Lord President – has dealt with complaints correctly.

She cannot investigate complaints against judges herself and is unable to make recommendations.

Ali, who took office in 2011, also works on a tiny budget of around £2000, whereas a beefed-up Ombudsman south of the border has nearly £500,000.

In an interview with the Sunday Herald last year, Ali said she had found the job “enormously frustrating and difficult”, adding: “Fundamentally the problem is the legislation … it’s judges judging judges’ conduct.

“I’m presented as the independent element, but without the powers I can’t be independent.”

She added: “Really, it’s difficult to make an impact within the constraints that I’m in at the moment. It’s a bit like being in a straitjacket.”

Ali also claimed Scotland was lagging behind England in holding judges to account, claiming: “Citizens here have a lot less protection than they do in England and Wales.”

The JCR has also encountered difficulties with the JOS and claimed the post amounted to “window dressing”.

The Sunday Herald has learned that Ali, whose term ends in August, will not seek an extended period in office, where she could have served five years. She wrote to Justice Secretary Kenny MacAskill before Christmas to inform him of her decision. MacAskill will have to find a new JCR, an appointment that must be made “with the consent” of the Lord President.

In her latest annual report, she found 20 breaches of the rules by the JOS last year.

Ali said: “I believe that I’ve been able to make a difference, albeit in a small way – which is not only personally satisfying, but important for the people who use my service. Ultimately, that’s what it’s all about.

“I feel that I have achieved all that I can within the constraints of legislation that has created a JCR role that has independence without the power to change anything.

“I can freely comment, criticise, persuade, suggest, speak out – but I have no power to make things different and better.

“Without the ability to implement change, the role feels tokenistic and I’ve never been one to go along with tokenism.”

Graeme Pearson, Scottish Labour’s justice spokesman and a former top police officer, said: “Moi Ali accepted an important responsibility and was keen to do the job.

“She should have been supported and encouraged – instead her role developed as an unwitting sop for this SNP Government at a time our justice system requires genuine openness and accountability. She and the Scottish public deserved better.”

Liberal Democrat MSP Alison McInnes said: “The Justice Secretary asked Ms Ali to do a job and then point-blank refused to give her the support and resources she needed to deliver. This is simply not good enough.

“Moi Ali’s frustration over the lack of support she has received from ministers is wholly understandable. Her decision to stand down is an indictment of the lacklustre approach to transparency that the Justice Secretary has taken.”

A Scottish Government spokeswoman said: “We do not comment on personnel issues. We thank Ms Ali for the work she has done in her post to date.”

Sunday Mail:

Justice secretary Kenny MacAskill urged to improve scrutiny of Scotland’s judges after claims they stifle public complaints

We, Scotland’s judges, stand accused of making the process of complaining about us impossibly difficult. You, our toothless watchdog, have been deliberating. So, have you reached a verdict? YOU’RE GUILTY, M’LUDS

MOI ALI, the country’s first ever Judicial Complaints Reviewer, says she is currently powerless to do more to help the public understand the complex legal complaints system.

News Special : By Russell Findlay Sunday Mail 15 Dec 2013

KENNY MacASKILL has been urged to get tough with Scotland’s judges after a watchdog warned they are stifling complaints and dodging scrutiny.

Moi Ali was appointed by the SNP’s Justice Secretary as the country’s first ever Judicial Complaints Reviewer but, before delivering her second annual report tomorrow, she voiced fears that her role is mere “window dressing” and needs more teeth if it is to hold judges to account.

Ali says people find it virtually impossible to understand confusing rules about how to complain about judges, sheriffs and JPs. She said: “They are legal rules, written by lawyers for other lawyers to use. To me, the perspective is completely wrong. You write the rules for the public, not for lawyers.”

She believes that former solicitor MacAskill must bring in new laws to end judicial self-regulation.

Ali, who also sits on the Scottish Police Authority board said: “I think fundamentally the problem is the legislation. “The way it’s created, it’s about self- regulation so you have judges judging judges’ conduct. There isn’t really an independent element.“I’m presented as the independent element but, without the powers, I can’t be independent. We have the appearance of independent oversight but not the reality.”

Ali’s post was created by the Scottish Government in the face of fierce opposition from judges. With a £2000 annual budget, no staff and no office, she has been forced to work for free in addition to the three days per month for which she is paid.

She said: “There was a genuine recognition that something needed to be done. “But I think with any professional group, whether it’s the judiciary or any other powerful group of people, it’s quite difficult to take them on. “And I think that appearing to do something when actually, perhaps, doing the bare minimum is an easier way of addressing it. It’s a bit like being in a straitjacket.”

Ali has caused consternation in government and judicial circles by publicly admitting she is powerless. All she can do is review how complaints are handled by the Judicial Office for Scotland, which is headed by top judge Lord President Lord Gill.

She said: “I’m sorry to say that I do think there was an element of window dressing. “The system is about investigating complaints about the judiciary but that whole system is run by the judiciary. “Without any proper, external, genuinely independent oversight, you’re not going to have public faith and confidence. “I know people will be very unhappy with me using the term window dressing but I think there is an element of that.”

Scotland’s system trails behind England and Wales, who have an Office for Judicial Complaints.

In addition, there is a powerful independent ombudsman who can overturn decisions, order reinvestigations and compensate victims.

Ali said: “England and Wales started doing this, and a whole lot more, in 2006. “We’re not even where they were at when they started so we’ve got an awful lot of catching up to do. “The fact we have a JCR and not an ombudsman, to me, says it all.”

Some senior figures within the judicial system privately dismiss Ali as an “outsider” and unqualified to comment.

She has also angered judges by backing a Holyrood petition by legal reform campaigner Peter Cherbi calling for a register of interests for judges.

Lord Gill sparked cross-party anger by twice rejecting a plea by Holyrood to give evidence to the committee. He said the Scotland Act allowed him to avoid parliamentary scrutiny as it ensures judicial independence from political meddling.

But critics said that the Act is to protect judges from being quizzed over courtroom decisions not administration issues.

Ali said: “I think it’s a confusion between independence and accountability. I really do think it’s as basic as that. The dividing line is completely clear.”

Ali has led by example by voluntarily publishing her own register of interests, even though it took six months to get it on the JCR website. Her annual report details 20 alleged breaches of the complaints rules by the Judicial Office.

She has also scored two victories for the public since taking the three-year post.

One is that Lord Gill has now agreed to supply people with some details about the outcome of
their complaint. And he has also agreed to inform the JCR about the outcome of cases which she refers to him.

She said: “I’ve made some small differences but it’s progress. “But really it’s difficult to make an impact within the constraints that I’m in at the moment.”

MacAskill has already dismissed calls to tackle the powerful judiciary with new laws but Ali wants him to think again.

She said: “In the past few years in Scotland, there have been some really good things being done in all sorts of different sectors. “I don’t understand why this appears to be the one sector that is really behind. “I don’t think there’s an appetite for looking at the legislation again. “I think it will have to be looked at again at some point because, at the moment, Scots citizens have a lot less protection than they do in England and Wales. “If I was asked to create something to deal fairly, effectively, efficiently and transparently with complaints about the judiciary, I would not invent this.”

The Judicial Office for Scotland: “The review of the existing complaints rules ends tomorrow. “The responses will then be considered in full by the Lord President.”

JUDGES IN DOCK

Probed after bawling out a dog walker

A judge was accused of a “tyrannical rant” at a woman walking her dog. The dog walker was left “shaking with nerves” and felt “very intimidated” by the unnamed judge, who told her to put her pet on a lead.

Her complaint was dismissed as being “without substance” by the Judicial Office for Scotland because he was not acting as a judge at the time. But the Judicial Office’s own guidelines state that complaints can be made about judges’ conduct inside and outside court.

The dog walker said ; “The point is that he is a judge and. as such, may be expected to adhere to a certain standard of personal conduct and behaviour to all members of the public.” Ali agreed and upheld the complaint that the Judicial Office had breached their own rules.

Accused of insensitivity over disability.

A disabled woman complained about a judge who, she claimed, ignored her medical condition. The woman said that the judge did not consider her “mental and physical disabilities and current aggressive medical treatment”.

The Judicial Office kicked out the complaint because it was “primarily about judicial decisions”. But Ali found that the Judicial Office rules were breached because the complaint also related to the judge’s conduct so should have been investigated. She also said that “further investigation” would be needed to establish if the judge had been insensitive.

However, Lord Gill disagreed with Ali’s opinion.

IF I AM NOT SURE WHAT THIS LEGALESE MEANS

Watchdog Moi Ali slates the legal jargon which is used to deter ordinary Scots from complaining about judges.

She fears the complex Judicial Office for Scotland rules are not fit for purpose.

She said ; “If you have a set of rules that you can pick up and not understand, then they can’t be fit for purpose.

And the public don’t understand. They are not written in any understandable way.

I don’t understand the purpose of some of the rules and some of them are cross-referenced with Acts of Parliament.”

Ali has submitted a damning 25 page report to Scotland’s top judge, Lord President Lord Gill, who is reviewing the rules.

In it, she says : “One of my principal concerns relates to the style and tone of the rules and the way in which they have been constructed, giving an impression that they are devised to deter people from complaining, to find reasons to reject a complaint at the earliest opportunity and to over-protect the judiciary.”

She cites numerous examples of archaic language which many people would struggle to understand.

For example, Section 5.4.b states : “If sent by electronic means indicated to be acceptable a document is to be treated as valid only if it is capable of being used for subsequent reference.”

Ali has urged Lord Gill to bring in new rules which will be “fair, proportionate, transparent and easy to understand.”

Sunday Herald:

 My position is window-dressing, says legal watchdog with budget of £2000

Paul Hutcheon Investigations Editor Sunday 15 December 2013

SCOTLAND’S judicial watchdog says her post is mere “window dressing” and has blasted the system set up to investigate judges as unfair and not fit for purpose.

Moi Ali, the Judicial Complaints Reviewer (JCR), also said she was “really baffled” that the SNP ­Government had not embraced reform, and claimed the country was lagging behind England.

MSPs yesterday welcomed the intervention.

Judges are responsible for ­probing complaints against their colleagues under the model of self-regulation, overseen by the Judicial Office for Scotland (JOS).

The rules that govern the system are also drawn up by the Lord President, who is the head of the judiciary. Ali can step in if an ­individual believes a complaint has not been handled properly, but her powers do not include ­ordering ­re-investigations or ­imposing sanctions.

Her second annual report is published tomorrow and it reveals she found 20 breaches of the rules last year.

However, in an interview with the Sunday Herald, Ali, 50, backs an overhaul of self-regulation.

“Fundamentally the problem is the legislation … it’s judges judging judges’ conduct.

“I’m presented as the ­independent element, but without the powers I can’t be independent.”

She added: “Without any proper, external, genuinely independent oversight, you’re not going to have public faith and confidence.”

Ali, who also sits on the boards of the Scottish Police Authority and the Scottish Ambulance Service, believes the limitations of the post are stark.

She said: “I’ve made some small differences and they are small … But really it’s difficult to make an impact within the constraints that I’m in at the moment. It’s a bit like being in a straitjacket.”

South of the Border, the ­equivalent ombudsman has staff, a budget of £500,000 and beefed-up powers.

Ali, by contrast, is on her own and has a budget of about £2000 a year.

“Citizens here have a lot less protection than they do in England and Wales,” she said. “I think that Scotland is leading the way in all sorts of areas – healthcare and education – but here, this is probably one of the few areas where Scotland is playing catch-up.”

Asked why the SNP Government was ­resistant to changing the complaints system, she said: “I have to say I don’t know, I’m really baffled.”

In retrospect, Ali believes the JCR post was not taken seriously by those who created it. “I’m sorry to say that I do think there was an element of window dressing.

“I think that for any professional group, whether it’s the judiciary or any other powerful group of people, it’s quite difficult to take them on.”

On the subject of her tiny budget, Ali said she recognised there was no appetite for a “great big quango”, but noted: “It seems to have gone too far the other way and there’s been an attempt to create something on the cheap.

“I know people will be very unhappy with me using the term ‘window dressing’, but I think there is an element of that.”

However, Ali has helped reform the way in which the JOS conducts the investigation process.

The Lord President has agreed to inform her of the final outcome of any referrals she makes to him, while a summary of the initial JOS investigation report will also be provided to complainers.

Both changes resulted from Ali’s pressure. Even so, she is realistic about the capacity for meaningful change within the status quo.

“If I were asked to create something to deal fairly, effectively, efficiently [and] transparently, with complaints about the judiciary … I would not invent this.”

She is highly critical of the Lord President’s rules that govern the investigation system: “They are legal rules written by lawyers, for other lawyers to use. To me, the perspective is completely wrong.”

She added: “If you have a set of rules that you can pick up and not understand, then they can’t be fit for purpose. They are not written in an understandable way.”

She has contributed to the Lord President’s consultation on changing the rules, but says the practice of judges investigating their colleagues is the bigger problem:

“All of the correspondence I’ve had, people feel that’s not right, that it’s not fair. Even if the Judicial Office act completely fairly, and apply the rules fairly, public perception is really important.”

She does not regret taking up the post, but said her stint had been “enormously frustrating and difficult”.

Scottish Liberal Democrat justice spokeswoman Alison McInnes MSP said: “Moi Ali has been admirable in her pursuit of transparency within the judicial system. The ­Scottish Government should treat her concerns with seriousness, as the current system of self-regulation is not as transparent as it could be. It is clear that there is more work to be done to ensure public confidence in the judicial system.”

Scottish Conservative justice spokeswoman Margaret Mitchell said: “If the Judicial Complaints Reviewer believes her position is simply window dressing and that the current system is not fit for purpose, then the Scottish Government should look into these concerns.”

A spokeswoman for the ­Judicial Office for Scotland said: “It would be inappropriate to comment in advance of the publication of the Judicial Complaints Reviewer’s report on December 16.”

A Scottish Government ­spokesman said: “The JCR has carried out only a small number of reviews since the post was created two years ago. It would be premature to review the powers of the role at this point in time.”

Sunday Mail:

What's the point of a watchdog without teeth - Sunday Mail 22 September 2013WHAT’S THE POINT OF A WATCHDOG WITHOUT TEETH?

REVEALED JUDGES ESCAPE SCRUTINY

By Russell Findlay Sunday Mail 22 Sept 2013

A watchdog probing complaints about judges yesterday urged Justice Secretary Kenny MacAskill to give her some real bite.

Moi Ali admits there’s “little point” to her role as Scotland’s first ever Judicial Complaints Reviewer because of its lack of teeth.

She said: “It’s fair to say because I don’t actually have any powers. There’s no real independent oversight.If you provide oversight without powers, then there’s almost little point to it.”

Judges have opposed an independent ombudsman to oversee complaints against them.

Their protests resulted in Justice Minister MacAskill creating the “powerless” JCR who works three days per month, has a £2000 annual budget and no staff.

Complaints against judges are initially handled by the Judicial Office for Scotland, which is headed by the Lord President Lord Gill.

The complainer can ask Ali to review how their case was handled – but she can take no action.

In England and Wales, the Office for Judicial Complaints has 15 staff and publishes details of upheld complaints. People can then appeal to the Judicial Appointment and Conduct Ombudsman, headed by Sir John Brigstocke, with 14 staff.

His post is the equivalent to Ali’s but he can overturn decisions, order reinvestigations and ask for victims to be compensated.

Ali said: “It’s hard to say why, if you make a complaint about a judge in England or Wales, the powers available are so much wider compared to what happens in Scotland. Their approach couldn’t be more different in terms of openness.”

Lord Gill has snubbed Holyrood’s plea to discuss legal campaigner Peter Cherbi’s petition for a judicial register of interests. He cited the Scotland Act which says judges can’t be forced to attend parliament. But critics say the Act only refers to judges’ courtroom decisions.

Ali last week told the committee: “Clearly politicians should have no part in influencing judicial decisions.

But judicial accountability is a completely separate issue.

“That’s the issue that cuts through all of this for me.”

During last week’s hearing, Scottish Tory deputy leader Jackson Carlaw launched a colourful attack on Scotland’s top judge.

Carlaw said Lord Gill had an “Edwardian establishment disdain for the hoi polloi”.

He also said there was a feeling “the swish of judicial ermine and velvet should cow into deference both public and the legislature”.

Committee chairman, Labour MSP David Stewart, and his SNP deputy Chic Brodie plan to meet Lord Gill in private and raise Ali’s lack of power with MacAskill.

The Scottish Government said: “We note the committee plans to raise these issues and will respond in due course.”

Sunday Mail:

Judicial Investigator Moi Ali left in the dark over complaints against Scottish Judges - NO She May Not 10 Feb 2013 Sunday MailJUDICIAL INVESTIGATOR LEFT IN THE DARK

May the watchdog appointed by the Scottish Government to investigate complaints against judges have leave to approach the bench, Your Honours?
NO.. SHE MAY NOT

SILENCE IN COURT Lord Gill has not met judicial investigator so far.
EXCLUSIVE, By Russell Findlay, Sunday Mail 10 Feb 2013

A watchdog appointed to look into complaints against Scotland’s judges fears she is being frozen out.

Moi Ali has accused the country’s most senior judge, Lord President Lord Gill, of undermining her work by blocking access to vital documents.

She revealed her frustration in her first annual report since taking up the newly-created role of Judicial Complaints Reviewer.

Ali said she was only seeing the correspondence between the Judicial Office, who act for the judges, and the complainers.

But she was not allowed to see the internal memos and reports between the office and the judges about complaints.

She said: “I believe that in order to conduct a review, and to make wider recommendations on complaints handling, I need to see files in their entirety. “Without this, it is difficult to satisfy myself, let alone complainers, as to the fairness of the process. “I have continued to complete reviews but have made it clear to complainers that I have not had access to all documentation in their complaint file.”

Justice Secretary Kenny MacAskill defied judicial opposition to create the part-time job to monitor how complaints against judges, sheriffs and justices of the peace are handled.

And Ali fears there is still resistance from within the judiciary to her role as an independent investigator.

She said: “With any profession, there’s a feeling that regulation should come from within. “But this is the first time that the judiciary have been exposed to this kind of scrutiny, which other professional groups are more used to. “Most have accepted there is some kind of mechanism to scrutinise their conduct. That doesn’t mean that we don’t have a free and independent judiciary.”

Ali also revealed that she has still not met 70-year-old Lord Gill, who was appointed to his £214,165-a-year post last June, and did not meet his predecessor Lord Hamilton.

She said: “I’m not overly concerned but I’m slightly surprised that the Lord President did not proactively suggest a meeting. I don’t need to meet him but I think it would have sent out a positive message.”

Ali is more concerned at the decision to block her access to documents.

She said: “This came to light because in review number one I was sent all the documents but then I didn’t get the same ones for the second review. “At that point I discovered that I had been given them in error the first time. “I can’t see any reason why and that worries me because I can’t understand it.”

Ali also voiced concerns that judges being investigated could evade punishment by quitting before the probe is complete. And she found there has been a breach in the rules in the way one of the four complaints she reviewed had been handled. Ali also urged the judiciary staff to use plain English when dealing with the public.

Her lack of administrative support was also highlighted – on her first day, she did not have a computer, printer, phone, email address or stationery – and she said it meant she was “unable to give the level of service that I would like to provide”.

A Judicial Office for Scotland spokeswoman said: “In the short time the JCR has been in the post, we have worked very closely with Ms Ali in implementing, developing and reviewing the rules and how they are applied.

“With any new system, there is always a period of adaptation and adjustment and we are grateful to Ms Ali for the helpful suggestions and recommendations she has put forward and which, for the most part, have been implemented.

“A review of the rules is due to take place shortly and the Lord President is committed to working constructively to ensure the complaints procedure develops effectively.”

TOP JUDGE REJECTS REGISTER OF INTERESTS

Lord Gill has rejected calls for judges to register their interests – because he fears they may be harassed by “aggressive media”.

A petition lodged with the Scottish Parliament is calling on the judiciary to reveal any commercial, business or legal links in case they raise possible conflicts with their cases.

But in a letter to the public petitions committee, Scotland’s most senior judge said current safeguards are enough. Lord Gill said: “In practical terms, it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case.

“The terms of the judicial oath and the statement of principles of judicial ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.” He said details held on a register could be abused by “aggressive media or hostile individuals, including dissatisfied litigants”.

The call for a register has also been rejected by the Law Society of Scotland.

 

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