Scottish Parliament debate on register of judicial interests. ON Thursday 09 October 2014, the Scottish Parliament’s main chamber held a detailed ninety minute debate on calls to require judges to declare their significant financial and other interests, as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary. At the conclusion of the debate, MSPs unanimously supported the proposal urging the Scottish Government to give further consideration to a register of interests for judges.
The public petition, submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of 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.
In a move aimed at widening public awareness of the undisclosed interests of Scotland’s judiciary and details contained in the recent debate by MSPs at Holyrood, each day this week, Diary of Injustice is publishing the official record of the speeches given by individual MSPs who participated in the debate along with video footage.
Today focuses on the opening speech given by David Stewart MSP (Highlands & Islands) (Scottish Labour) who is also the Convener of the Scottish Parliament’s Public Petitions Committee.
David Stewart (Highlands and Islands) (Lab):
A few short years ago, the Parliament sent me to Johannesburg in South Africa to address a major conference on the role of public petitions. After I did so, a young American professor took the stage. He told the story of President Kennedy visiting the space agency, NASA. During the tour, the president talked to an elderly cleaner who was washing the canteen floor. The cleaner told him that he had worked for NASA since its inception in 1958 and that his job was to put a man on the moon. The Public Petitions Committee does not aspire to put a man on the moon; rather, it aspires to be a window of the Parliament, to be accessible and to go the extra mile for each and every petitioner.
There is no magic wand, but we acknowledge our successes, including successful petitions on cancer drugs, pain relief and mesh devices. I welcome the opportunity that has been given to the committee to highlight the issues that Peter Cherbi raises in his petition, which seeks a register of interests for Scotland’s judiciary. I thank all the committee’s members and all those who provided evidence.
Mr Cherbi petitioned Parliament seeking the creation of a register of the pecuniary interests of judges bill. His petition was lodged in Parliament at the end of 2012; since then, the committee has been listening to the arguments in favour of and against the proposal. I should say that part of Mr Cherbi’s motivation in introducing the issue was the consideration in New Zealand of a members’ bill by Dr Kennedy Graham of the New Zealand Green Party. I understand that that bill had its origins in the resignation of a former New Zealand Supreme Court judge who was accused of misconduct for allegedly failing to disclose a large debt that he apparently owed to a lawyer who was appearing in a case before him.
The committee’s motivation in giving consideration to the issue and in seeking time in the chamber to debate it is a point of principle and comes from the starting point of there being an assumption of openness and transparency in all areas of public life in order to shine a light, if you like, into every corner of Scottish society.
The petitioner said that the catalyst for his petition was Scottish media investigations into members of the judiciary here. He told the committee that the investigations had revealed a number of criminal charges and convictions. He pointed out that there is now greater public expectation of transparency and accountability across all branches of public life, and that the judiciary has a duty to be accountable to the wider community and should be expected to adhere to the standards that apply to other people in public life, including members of the Scottish Parliament, ministers and members of Parliament.
This Parliament prides itself on being open and accessible. That is a cornerstone of the institution, which was developed by our founding fathers from the work of the Scottish Constitutional Convention. Members of the Public Petitions Committee seek to champion that approach across all areas of public life in Scotland.
I support an independent judiciary, which is a crucial element in the separation of powers between judiciary and legislature. The committee’s motivation in considering the petition was in no way about interfering with judicial independence. Rather, it was about reflecting on whether reasonable modern-day public expectations about transparency are being met.
Prior to the creation of the Supreme Court in 2009, the highest court was the Appellate Committee of the House of Lords. The law lords were bound by the House of Lords disclosure rules, under which financial interests must be declared. There is therefore a precedent in that regard.
For the most part, Scotland and its institutions have a good track record of openness and accessibility. In exercising its scrutiny function, this Parliament has worked to bring about improvements in those areas. However, a good track record is not sufficient reason to say that we should not stop and think about what is done and how it might be improved.
We contacted Dr Graham in New Zealand about his Register of Pecuniary Interests of Judges Bill. He told us that the judiciary in New Zealand is not overly enamoured of the suggestion of a register of interests. I think that that is a fair assessment of the position of the judiciary in Scotland, too. Dr Graham told us that the New Zealand chief justice and president of the Court of Appeal testified before the select committee that was dealing with the bill. As members might be aware, the Public Petitions Committee invited Lord Gill, the head of Scotland’s judiciary, to come to the committee to give evidence. Lord Gill declined to attend a meeting of the committee. That is, of course, his prerogative, but the committee is on record expressing disappointment about not being able to hear from Lord Gill in person at one of its formal meetings. However, the deputy convener, Chic Brodie, and I met Lord Gill informally in Parliament to discuss the petition, and our discussion was useful.
When the committee first sought views on what the petition seeks, we were told by the judiciary and the Scottish Government that the existing safeguards are sufficient. The first of those is the judicial oath that must be taken by all judicial office-holders. In the oath, office-holders swear to
“do right to all manner of people ... without fear or favour, affection or ill will”.
The second safeguard is the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”, which was published in 2010 and updated in 2013. The statement provides guidance for judges and draws attention to areas of potential sensitivity.
The third safeguard to which we were directed is the Judiciary and Courts (Scotland) Act 2008, which contains provisions to regulate and investigate the conduct of judicial office-holders, and contains rules for dealing with complaints about judicial office-holders.
The petitioner has argued that no statistical or analytical information is available that records whether and how frequently declarations of interest are being made. I will come back to that point.
The committee received evidence from Moi Ali, who was at that time the Judicial Complaints Reviewer. The role was created by the Scottish Government, to review the Judicial Office for Scotland’s handling of investigations into members of the judiciary and ensure that complaints had been dealt with fairly. Ms Ali has since moved on; I wish her well in her current and future roles. The written and oral evidence that she provided to the committee was well thought through and thought-provoking.
Ms Ali made it clear that in her role as Judicial Complaints Reviewer she supported what the petition called for. Her view was that a register of interests would increase the transparency of the judiciary and contribute to public confidence in the judiciary’s actions and decisions. She told us:
“Transparency tends to increase trust; conversely, lack of transparency is more likely to create suspicion.”
In many ways, that simple statement goes to heart of the issues that have come up during our consideration of the petition.
In Ms Ali’s view, what is required of the judiciary should not be out of line with what is required of others who hold high public office. She told us that she had dealt with a complaint about a judge who had allegedly used their position to promote a body that was alleged to have breached international law. In another case, she dealt with a complaint about a sheriff who allegedly participated in a social function that had been organised by a lawyer who had appeared before him at an earlier proof hearing. We did not receive any information about complaints received or considered from the judiciary.
A judicial office-holder will recuse him or herself—that is, decline to hear the case—in situations where it is felt that there is a potential conflict of interests. Until recently, there was no published information about when and in what circumstances recusals took place, but after the committee’s interest, I raised the recording of recusals directly with the Lord President. Lord Gill agreed to ensure to ensure that information on recusals is publicly available. Therefore, since April this year, all incidences of recusals and the reasons for them have been published on the judicial website; 14 such incidences have been notified.
The move to make more information available is welcome—for example, in April at Forfar sheriff court, Sheriff Veal personally knew a witness and correctly recused himself—but some feel that that does not go far enough. The published information relates to instances in which a judicial office-holder has recused. What about the instances—no matter how rare—of a judicial office-holder not being willing to recuse, despite having received representation? I am not clear where someone could get that information. Is it recorded? Is it available publicly? If not, is there a reason for its not being available? I understand that the complaints that the Judicial Complaints Reviewer saw were more about failure to recuse than about the lack of information on the recusals that took place.
What recourse does someone have when an allegation of a conflict of interests comes to light after a court case has been heard? If there is no means by which someone is able to check in advance whether there is potential for any conflict of interests, there is likely to be a sense of grievance if something comes to light after a court case has been heard and decided. Could a register of interests avert the need for such complaints by enabling people to make an informed decision to challenge any perception or allegation of conflict of interests at the time, rather than after a case has been decided?
On the other hand, the Lord President is concerned that the introduction of a register of interests could have unintended consequences and that consideration must be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals. Of course, that is right, but would a register of interests increase the risks that judicial office-holders face in that regard?
I hope that I have set out some of the questions on which it would be useful for us to reflect. I understand that the New Zealand bill was ultimately withdrawn on the basis that agreement was reached to improve the rules on recusals and conflicts of interests. I am pleased that agreement was reached there and that the issues were discussed openly. I welcome the opportunity to debate the issues that the petition raises and I look forward to hearing colleagues’ views.
I move, that the Parliament notes Petition PE1458, in the name of Peter Cherbi, on the issue of a register of interests for members of Scotland’s judiciary; welcomes the petitioner’s efforts to highlight what it considers to be an important matter, and commends the issues raised to the Scottish Government for further consideration.
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