Wednesday, January 22, 2020

JURY SERVICED: Register of Interests for 1,700+ Scottish Court staff has only ONE ENTRY in 3 years – Court employee’s link to winning £13K Sheriff Court jury catering contract concealed from FOI scrutiny by Scottish Courts & Tribunals Service

Court employee links to jury catering contract. QUESTIONS over the accuracy of a Register of Interests for employees of the Scottish Courts and Tribunals Service (SCTS) have emerged - after a member of staff’s link to a catering contract to provide food to jurors at one Sheriff court – was concealed from a Freedom of Information disclosure.

The lack of information in the SCTS register of staff interests, and failure to disclose court employees links to the award of a successful rolling catering contract – providing £13,000 of catering & food to jurors at Stirling Sheriff Court – was only admitted by the Court service - after a series of FOI requests established contracts were being handed out to companies linked to court employees.

Some weeks ago, questions were put to the Scottish Courts and Tribunals Service in the form of an FOI request - after information was provided to the media suggesting significant failures of court employees to declare profitable interests linked to contracts providing services to the courts and judiciary in Scotland.

For some context on this - the probe on court staff failing to declare links to money making contracts providing services to the courts, came about during additional scrutiny of how law firms & some court staff are using hospitality to earn ‘referral fees’, employment for relatives and other financial favours linked to criminal defence law firms poaching each other’s clients.

A full report on hospitality in Scotland’s courts –with links to earlier articles- can be found here: COURT GIFTING, M’LORD: Transparency declarations of ‘hospitality’ to Scotland’s Courts reveal gift giving by Police & Prosecutors to court staff - and reductions in declared hospitality from Legal Aid millionaire law firms

In response to the Freedom of Information enquiry, Gillian Warner of the Scottish Courts & Tribunals Service issued a disclosure with one single declaration, stating the following:

A member of staff advised that a member of their family owns a catering company which may at some point tender for business should the opportunity arise. To date this has not come to pass.

A request for a Freedom of Information review was submitted - and in response to that review - the SCTS were forced to reveal the contract for providing food to juries at Stirling Sheriff Court – was successful and had been awarded – despite the earlier claim that the contract had not been awarded.

Files reveal SCTS failure to disclose staff links to contracts. Margo Mackie, Deputy Head Information Governance & Correspondence said: “I have also made some further enquiries and, although Mrs Warner indicated that a tender for business had not been made, I can clarify that, subsequent to the entry in the register, the company was successful in securing a contract for catering at Stirling Sheriff Court. I am sorry that this was not identified at the time the response was issued.”

Ms Mackie added further detail in the FOI review with the entry as was declared in the SCTS staff register: “The company services a sports club in Stirling and provides outside catering for local companies for functions etc. There are no expected conflicts of interest here however, should a tendering exercise take place for any catering requirements within the Stirling area, it is quite possible that the company would attempt to secure that business. No specific additional steps identified or taken to mitigate any risk at this stage.”

However, when asked about the value of the contract and how long it had been running – the Court Service insisted a new Freedom of Information request must be submitted – which allowed the SCTS an extra twenty days for a response to be given.

It then emerged from the response to the new FOI request that the £13K rolling contract for catering – had been operational for at least a year – despite earlier claims from the Scottish Courts & Tribunals Service that no such contract existed.

In response ot the second FOI request, Margo Mackie - Deputy Head Information Governance admitted: “Catering for jurors at Stirling Sheriff Court involves providing jury catering for each day a jury is sitting, with provisions made for 15 jurors. This was arranged on a trial basis for the period December 2018 and January 2019 and thereafter is a rolling contract which can be terminated with one month’s notice.”

“I can confirm that the costs incurred to date under this arrangement were £558.72 for December 2018 and January 2019 during the trial period, and £12,480.86 following commencement of the contract for the period February 2019 to December 2019.”

However, while elected politicians such as MSPs & MPs, and those in other public bodies such as Police Scotland are required to declare all their interests, a significant failing in in how employees of the Scottish Courts and Tribunals Service declare their interests has emerged – where Court staff are only required to declare interests they feel may be relevant, rather than a requirement for total disclosure.

A question was put to the SCTS, asking whether entries are only made in this SCTS staff register if a staff member feels they may have an interest to declare - rather than a full and comprehensive register of staff interests - per SCTS staff member - being kept and updated as appropriate - example the register of interests for Scottish Parliament MSPs.

In response, Margo Mackie - Deputy Head Information Governance stated: As regards your first point I can advise that SCTS follows the Civil Service Management Code which sets out regulations and instructions regarding the terms and conditions of service of civil servants. One of these regulations concerns "the declaration of relevant business interests which SCTS employees or members of their immediate family hold, which might compromise, or appear to compromise, their integrity, honesty, objectivity or impartiality”.

“SCTS staff are therefore required to declare any business interests (including directorships) or holdings of shares or other securities which they or members of their immediate family (spouse, including partner where relevant, and children) hold, to the extent which they are aware of them, which they would be able to further as a result of their official position.”

“This means that, where there is a potential for income or financial benefit to be gained from work related to the SCTS, staff must declare and register an interest. Such interests are declared by informing their Unit Head who considers whether the interest is appropriate and should be registered. Thereafter details are provided to Human Resources Unit for addition to the SCTS Register of Interests.Staff who do not declare and register an interest which subsequently comes to light may be subject to disciplinary action.”

After initially concealing information from a Freedom of Information request, admitting further details in a review, and then insisting on a second FOI request, the Scottish Courts & Tribunal Service claimed the member of staff had no part or involvement in procurement.

Margo Mackie Deputy Head Information Governance & Correspondence claimed: “It has been confirmed that the member of staff concerned is not involved in procurement and played no part in the quotes exercise which awarded the contract, nor do they have any active involvement in the running of the company.”

Margo Mackie added: “The matter of updating information contained in the register will be considered in future reviews of the procedures.”

However, no explanation has been given as to why the member of staff’s link to the successful contract was concealed from the initial Freedom of Information disclosure.

Independent Report – Court Employees Interests Register is insufficient

Report said SCS Registers insufficient, Court staff involved in private gains failed to declare. Former Judicial Complaints Reviewer Gillian Thompson’s Report on Hospitality & Gifts in the SCS stated:  “The information currently captured on the registers is insufficient to provide assurance that staff are using their common sense and considering issues such as conflict of interest.

Ms Thompson went on to recommend the “SCS should revise the Policy on Acceptance of Gifts, Rewards and Hospitality to ensure that it is fit for purpose for all staff, taking account of the various roles performed within SCS. It may also be time to revisit the levels of value for gifts and hospitality.”

The former AIB’s report also revealed court staff were using their positions to earn money privately from their links with lawyers and law firms operating in courts, stating “Several staff raised the issue of sheriff clerks who carry out extrajudicial taxations and private assessments and who personally benefit financially from these activities.”

Ms Thompson’s report roundly condemned this practice, stating: “Not only is it inappropriate in terms of the civil service code requirements for staff who are public servants to be able to receive private gain from their employment it is also highly divisive when other staff see such benefits being derived from simply being in the right post of Auditor of Court within the Sheriff Courts.”

Ms Thompson recommended in her report the “SCS should bring the practice of sheriff clerks profiting privately from their employment by SCS to an end as quickly as possible”.

Now, a number of additional claims by whistleblowers regarding undisclosed links between SCTS staff and high value contracts providing services to the courts are currently being examined by DOJ for further investigation and publication at a later date.

Readers should note the Scottish Parliament’s Justice Committee are currently considering an eight year cross party backed petition calling for a Register of Interests for members of Scotland’s judiciary.

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.

Previous articles on hospitality and gifts to the Scottish Courts and Tribunals Service, reports on gift giving to court employees and investigations by Diary of Injustice on the relationship between law firms and SCTS staff can be found here Hospitality and Gifts to the Scottish Courts.

Friday, January 17, 2020

SUPREME COURT INTERESTS : Prorogation case judge Lord Reed who failed to declare role in appointment of Scotland’s Prorogation Judicial Review ruling top judge Lord Carloway - takes over as new President of UK Supreme Court

President of UK Supreme Court Lord Reed. A TOP JUDGE who failed to declare a potential conflict of interest in relation to last year’s Supreme Court ruling on the unlawful suspension of Parliament – has taken over the role of President of the UK Supreme Court (UKSC) from Lady Brenda Hale.

Amid media plaudits from Lord Hopewho currently serves with other Scottish judges in courts in the United Arab Emirates & Gulf States - where Human Rights abuses, domestic abuse & trafficking in migrant workers lead the order of business -  Lord Reed - Robert John Reed (Baron Reed of Allermuir) – who has previously sat at the European Court of Human Rights and on a string of other appointments – now presides over the UK’s most powerful court.

Prior to his appointment to the Supreme Court in February 2012 - after the death of Lord Rodger, Lord Reed sat in the Outer House of the Court of Session, and became principal commercial judge in 2006.

Lord Reed was then appointed a Privy Councillor – a position enjoyed by other Court of Session judges such as Lord Malcolm (real name Colin Campbell QC) and joined the Inner House of the Court of Session where he sat from 2008 to 2012.

However, in September 2019 - when the UK Supreme Court upheld the prorogation case brought by MSP Joanna Cherry (and others) – documents obtained from the Scottish Government revealed Lord Reed sat on the same appointments panel which recommended Lord Carloway for the position of Lord President – Carloway (real name Colin Sutherland).

Lord Carloway is the same judge who upheld the Judicial Review case brought by the same MSP – Joanna Cherry (and others) in Scotland, against the prorogation of Parliament.

In the findings of three Scottish appeal court judgesheaded by Lord Carloway himself, – Lord Carloway upheld the respondents contention that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

In that ruling, Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogation Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

Scrutiny of Papers obtained via Freedom of Information legislation and published in 2016 from the Scottish Government – revealed the same UKSC judge Lord Reed – also sat on the selection panel which recommended the appointment of Lord Carloway (Colin Sutherland) as Lord President in 2015.

The failure of Lord Reed to declare he sat on the appointments panel which recommended Lord Carloway for the top judicial job in Scotland – is one of two potential conflicts of interest for the Supreme Court judge which should have been aired and debated for recusal - prior to the UKSC hearing on the suspension of the Westminster Parliament.

How judges select Scotland’s judges - in secret Documents obtained from the Scottish Government revealed Lord Reed sat on the selection panel for the office of Lord President - along with Sir Muir Russell, Judge Lady Dorrian, and Deirdre Fulton – considered five candidates for the position of Scotland’s top judge.

This same panel – which included Lord Reed – went on to recommend Lord Carloway for the position as Lord President & Lord Justice General of the Court of Session.

Written exchanges between civil servants and the selection panel which are included in the released papers - 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.

Two emails from Lord Reed, dated 14th ^ 15 October 2015 – released by the Scottish Government in the FOI documents - give a minimal, and heavily redacted description of Lord Reed’s role in the panel’s work, which ultimately recommended Lord Carloway for the position of Scotland’s top judge.

In one email, Lord Reed states: “This strikes me as an excellent report. I have made a few minor suggestions as shown on the attached version. Most of the suggestions are trivial, [redacted]”

In a second email Lord Reed writes “I am content with the amended report. I agree, in particular, with the points which were made by Leeona. The amended version beems to me to present an accurate account, and a fair and balanced assessment [redacted]”

A further potential interest not declared, brought ot the attention of journalists by a legal source, identifies Lord Reed’s work together with Lord Carloway – on a ‘compatibility issues review’ to consider if the High Court of Justiciary in Scotland would still have to give permission for appeals in criminal cases to go forward to the UK Supreme Court.

The review group was itself established by Lord Carloway, with others appointed to the group being Lord Reed (Deputy President of the UKSC), and others - Lady Dorrian (Lord Justice Clerk); David Harvie (Crown Agent); Roddy Dunlop QC (Treasurer of the Faculty of Advocates); and John Scott QC (President of the Society of Solicitor Advocates).

The review concluded - "Appeals to the Supreme Court of the United Kingdom (UKSC) should not require certification by the High Court of Justiciary that the issue raises a point of law of general public importance, a review chaired by the Lord Justice General has concluded."

Although – it should be pointed out – coincidentally, the review on appeals to the UKSC – limited to appeals in criminal cases - came too late to help in several serious cases of judicial conflicts of interest in Scotland – particularly on a well known case where Court of Session judge & Privy Councillor - Lord Malcolm (Colin Campell QC) heard a case up to eight times - while failing to declare his own son represented the defenders in multi million pound damages action.

A report on the Lord Malcolm conflict of interest case can be found here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times - where his son acted as solicitor for the defenders.

The two potential conflicts of interest, not declared by Lord Reed in relation to what was a law changing UKSC ruling of significant impact – again highlight the need for a publicly available Register of judges’ interests - to ensure members of the judiciary do not forget to disclose interests which may have a bearing on cases before them.

The issue also brings into question again, the self imposed secrecy on judicial interests by the judges of the UK Supreme Court and wider UK Judiciary – who have resisted calls to become more transparent and declare their interests in the same way all public servants and elected politicians are required to declare in publicly available registers of interest.

The current stance of UK Supreme Court judges on transparency in relation to declarations of interest, is a point blank refusal by the judiciary to comply with the public expectation of transparency.

The UK Supreme Court’s website states the following in relation to judicial expenses and interests:

Justices' interests and expenses

Background

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

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

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

Current position

Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.

In addition all the Justices have taken the Judicial Oath - and they all took it again on 1 October 2009 - which obliges them to "do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will"; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case - whether a substantive hearing, or an application for permission to appeal.

In relation to the UK Supreme Court’s stance on declarations of interests, and declarations of conflicts of interest, Diary of Injustice reported on the issue in detail during 2017, here: SUPREME SECRETS: UK Supreme Court refuses to publish recusal data - Court rejects release of info on UKSC justices' conflicts of interest in response to Freedom of Information recusals probe on top UK court

During the probe of UKSC recusals and failure to declare interests, a common thread of dishonesty was noted in court staff’s handling of a Freedom of Information request from Scotland – which was only answered after coverage of the issue in The National newspaper, which prompted the Information Commissioner’s Office to order the court to respond to the request.

Lord Reed’s limited biography on the UK Supreme Court website (reprinted below) does not feature either of the issues identified linking the judge to Lord Carloway’s appointment as Lord President nor any mention of review & other work undertaken with Lord Carloway – including the UK Supreme Court sitting in Edinburgh, which included Lord Carloway as a sitting judge on the UKSC panel.

The announcement by 10 Downing Street of Lord Reed’s appointment as President of the UK Supreme Court in July 2019 read as follows:

The Rt Hon Lord Reed will succeed Baroness Hale of Richmond as President of the Supreme Court of the United Kingdom, alongside three additional appointments as Justices.

The Queen has been pleased to confer a peerage of the United Kingdom for Life on Lord Reed upon his appointment as the President of the Supreme Court in recognition of the contribution that he has made to law and justice reform.

Lord Reed will take up the position of President on 11 January 2020. Lord Justice Hamblen, Lord Justice Leggatt and Professor Andrew Burrows will join the Supreme Court as justices on 13 January, 21 April and 2 June 2020 respectively.Her Majesty The Queen made the appointments on the advice of the Prime Minister and Lord Chancellor, following the recommendations of independent selection commissions.

Lord Reed will replace Lady Hale who retires on 10 January 2020 after serving as President of the Supreme Court since September 2017.

LORD REED UKSC BIOGRAPHY:

Lord Reed was appointed as a Justice of the Supreme Court in February 2012 and has served as Deputy President since June 2018. Prior to his appointment to the Supreme Court he served as a judge in Scotland, sitting from 1998 to 2008 in the Outer House of the Court of Session, where he was the Principal Commercial and Companies Judge, and from 2008 to 2012 in the Inner House.

He was educated at the Universities of Edinburgh and Oxford, and qualified as an advocate in Scotland and as a barrister in England and Wales. He practised at the Scottish Bar in a wide range of civil cases and also prosecuted serious crime.

As well as sitting on the Supreme Court and the Judicial Committee of the Privy Council, he is a member of the panel of ad hoc judges of the European Court of Human Rights, and a Non-Permanent Judge of the Hong Kong Court of Final Appeal. He is also the High Steward of Oxford University.

IMPORTANT NOTE: Readers should note this article does not take sides in the brexit debate. This article is a reporting of a failure by a UK Supreme Court judge to declare or discuss relevant interests and a potential failure to recuse - by a senior judge who is the new President of the UK Supreme Court.

Sunday, January 12, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Do members have any comments or suggestions for action?

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

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

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

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

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

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

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

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

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

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

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

Do members agree? Members indicated agreement.

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

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

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

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

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

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

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

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

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

(S5W-24011)

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

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

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

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

Background: Freedom of information

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

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

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

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

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

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

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

The Police Federation in England and Wales

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

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

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

Data protection legislation

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

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

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

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

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

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

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

Scottish Government Action

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

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

Access to information Freedom of Information

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

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

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

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

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

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

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

Thursday, January 09, 2020

COURT GIFTING, M’LORD: Transparency declarations of ‘hospitality’ to Scotland’s Courts reveal gift giving by Police & Prosecutors to court staff - and reductions in declared hospitality from Legal Aid millionaire law firms

Hospitality Register identifies gifts to courts. A REGISTER which now requires the identification of anyone offering hospitality to Scotland’s Courts and judiciary – has seen a drop in high value gifts now recorded in more detail by the Scottish Courts and Tribunals Service (SCTS)

However, the latest declarations of hospitality to court staff in Scotland - reveals a slight decrease in gifts & hospitality from law firms raking in millions in publicly funded legal aid, while ‘anonymous’ gifts from unidentified “Member of the public” appear to be on the rise.

Among the providers of ‘hospitality’ to court staff are multiple law firms, technology companies, in-house legal teams of Scottish Local Authorities, and even Police Scotland, who provided a “Crystal engraved Police Scotland Armed Policing Specialist Firearms Unit ornament” to the Supreme Courts.

And now - thanks to media scrutiny, records of hospitality which is offered but refused - is also now part of the register.

Examples of refused hospitality include a burns supper dinner, offered by Microsoft to the Information Technology Unit in January 2019, and questionable offers of hospitality by Procuratir Fiscals to court staff – which included a faculty dinner offered to court staff at Kilmarnock Sheriff Court.

The rate of hospitality in terms of high value gifts has declined, at least if the disclosed records are to be believed.

And, law firms which are known to have received up to half a million pounds of legal aid every year – who were previously showering staff in local courts with gifts & hospitality – are no longer flooding the courts with perks & freebies after Diary of Justice began publishing disclosures on courtroom hospitality and it’s connections to legal aid & lawyers touting for business in local criminal courts.

The recently disclosed Register of Hospitality for Scotland’s Courts & Tribunals Service running from 2017-2019 – as provided by the SCTS in relation to a Freedom of Information request - can be viewed here: Scottish Courts & Tribunals Service Register of Hospitality 2017-2019

Among the extensive list of hospitality providing law firms are the following names, provided by a reader – which also highlight some gifts & hospitality from foreign Governments to Scotland’s courts. The location of hospitality offered/accepted is listed next to the provider: The Society of Solicitors of Hamilton (Hamilton Sheriff Court), Burnett & Co (Aberdeen Sheriff Court, Digby Brown Solicitors (Aberdeen Sheriff Court), McKinnon Hewitt Solicitors (Kilmarnock Sheriff Court), Belmonte & Co Solicitors (SCTS Lothian & Borders mgmt team), Leonards Solicitors (Hamilton Sheriff Court), Norwegian Civil Law Division (OPG & AOC), Innes Johnson LLP Kirkcaldy (Dunfermline Sheriff Court), Netherlands Judiciary, Lamont's Solicitors Ayr (Ayr Sheriff Court), Aberdeen Bar Association (Aberdeen Sheriff Court), George Mathers & Co solicitors (Aberdeen Sheriff Court), West Lothian College, Bar Association (Aberdeen Sheriff Court), Nigel Beaumont Solicitor (Edinburgh Sheriff Court), Unidentified Solicitor 3x Hospitality (Livingston Sheriff Court), Adams Whyte Defence Lawyers (Livingston Sheriff Court), Bar Association (Livingston Sheriff Court), Allcourt Solicitors (Livingston Sheriff Court), Balfour & Manson (Supreme Courts), Ministry of Justice - Korea (OPG & AOC) , Ministry of Justice republic of Korea (OPG & AOC), Chinese Delegation (Supreme Courts), School Mock Court Case Project (Supreme Courts), Marsh Insurance (OPG & AOC), University of Glasgow (Glasgow Sheriff Court), Solicitors for the Elderly (Supreme Courts), Inverness Legal Services (Inverness Sheriff Court), Malcolm Boyd Sheriff Officers (Airdrie Sheriff Court), BTO Solicitors (Supreme Courts & Edinburgh Sheriff Courts), Stewart and Watson property & Legal services (Elgin Sheriff Court), T Duncan & Co (Forfar Sheriff Court), Caesar & Howie Solicitors Alloa (Alloa Sheriff Court) , PoliceScotland (Supreme Courts), Cockburn McGrane Solicitors (Kirkcaldy Sheriff Court), G4S (Dundee Sheriff Court), MacDonald Law, Thurso (Kirkwall Sheriff Court), Caird Vaughan Solicitors (Dundee Sheriff Court), Lefevre Litigation (Supreme Courts), Alistair Young Solicitor (Dumbarton Sheriff Court), McKenna Law Practice (Kirkcaldy Sheriff Court), President of the Law Society of Scotland (SCTS Chief Executive Office), Court Police Officers (Kirkcaldy Sheriff Court), Hunter & Robertson solicitors (Paisley Sheriff Court), Procurator Fiscals Office Hamilton, Summary Unit (Hamilton Sheriff Court), Bonnar Accident Law (Airdrie Sheriff Court), JK Cameron solicitors (Dumbarton, Airdrie Sheriff Court), Kenneth M Greener solicitors (Hamilton Sheriff Court), Wink and MacKenzie solicitors (Elgin Sheriff Court), Aberdein Considine solicitors (Aberdeen Sheriff Court), Mackie Thomson & Co Ltd solicitors (Hamilton Sheriff Court), North Lanarkshire Council Legal (Hamilton Sheriff Court), Procurator Fiscal (Dundee Sheriff Court), Stirling Dunlop solicitors (Hamilton Sheriff Court), the MacKenzie Law Practice (Inverness Sheriff Court), AC O'Neill solicitors (Dumbarton Sheriff Court), Adairs solicitors (Dumbarton Sheriff Court).

A full listing of solicitors & law firms, companies and others who offered hospitality to court staff and the judiciary - can be viewed by searching the Register of Hospitality document which runs in detail to twenty eight pages, providing details of all disclosed hospitality from law firms, and others to the Scottish Courts & Tribunals Service.

Prior to Freedom of Information requests from DOJ journalists, the SCTS register of hospitality did not identify law firms – and was later found to be incomplete in recording hospitality, after an investigation was launched due to media coverage of gifts by law firms – some of which have received many millions of pounds of legal aid over the last decade.

Extract of Register of Hospitality 2013 Scottish Courts Service. Disclosures from the Scottish Court Service in documents reveal that in the last five years, over 500 instances of gifts and hospitality received by publicly funded SCS were declared under the rules.

Gifts such as expensive champagne, wines, chocolates and dinner invitations were given by lawyers and others to Sheriff Clerks and SCS staff, along with invitations to the Royal Garden Party, paid-for trips in planes, tickets to football matches and a host of other goods, services & gifts many court users may well come to question in terms of how much this gift giving by lawyers dents the supposed impartiality of court staff.

During reporting of the issue back in 2013, it emerged in the media that in some cases, lawyers had paid for criminal fines accrued by court staff, leading some to question their reasons for doing so and what secret benefits this brought to the legal profession and court staff involved.

At the time, legal sources acknowledged to Diary of Justice that significant numbers of gifts have not been declared by court staff, and that much of the gift giving may well be seen as thanks for favours done in court for law firms, particularly those who are pursuing clients for unpaid fees.

The lack of declarations of hospitality and gifts, and the coverage by Diary of Justice, which reported on concerns regarding hospitality involving Scottish Court Service employees – led to an investigation by Gillian Thompson – who served as Scotland’s second Judicial Complaints Reviewer (JCR)

Ms Thompson was asked by the Scottish Court Service to investigate reports of irregularities in hospitality given to court staff.

The request for the investigation came after the Scottish Court Service received Freedom of Information requests regarding hospitality in the courts, prompting concerns some staff may have accepted gifts or hospitality but failed to register.

Report said SCS Registers insufficient, Court staff involved in private gains failed to declare. Gillian Thompson’s Report on Hospitality & Gifts in the SCS stated:  “The information currently captured on the registers is insufficient to provide assurance that staff are using their common sense and considering issues such as conflict of interest.

Ms Thompson went on to recommend the “SCS should revise the Policy on Acceptance of Gifts, Rewards and Hospitality to ensure that it is fit for purpose for all staff, taking account of the various roles performed within SCS. It may also be time to revisit the levels of value for gifts and hospitality.”

The former AIB’s report also revealed court staff were using their positions to earn money privately from their links with lawyers and law firms operating in courts, stating “Several staff raised the issue of sheriff clerks who carry out extrajudicial taxations and private assessments and who personally benefit financially from these activities.”

Ms Thompson’s report roundly condemned this practice, stating: “Not only is it inappropriate in terms of the civil service code requirements for staff who are public servants to be able to receive private gain from their employment it is also highly divisive when other staff see such benefits being derived from simply being in the right post of Auditor of Court within the Sheriff Courts.”

Ms Thompson recommended in her report the “SCS should bring the practice of sheriff clerks profiting privately from their employment by SCS to an end as quickly as possible”.

HOW COURT CHIEFS LOST HOSPITALITY INFORMATION BATTLE

When DOI launched an initial investigation into hospitality and graft among court staff, the Scottish Court Service refused to release information relating to the gift register, claiming “the names of the gift or hospitality provider would be deemed as personal information” and “as the provider of the gift or hospitality was not made aware at the time that their name may be released, we consider disclosure of such is likely to bring the Scottish Court Service into conflict with the data protection principles.”

However, the Freedom of Information request – from DOJ – triggered a review of hospitality policy at the Scottish Court Service, leading to names of ‘'hospitality’ providers being added to the register.

Richard Warner of the SCS said: “I can advise you that due to your request for this information, the Scottish Court Service has changed the policy covering hospitality and gifts to ensure that the provider of any hospitality or gift are made aware that their name shall be entered on to our register and may be disclosed if requested in any future information request. This policy change shall take effect as from 1 January 2014 so the release of names may be considered in any future request for gifts or hospitality offered from this date. The policy also states that if the provider does not consent to their name being considered for release then the gift or hospitality cannot be accepted by a member of staff.”

After a request for review of refusal to disclose the information, the SCS again refused - this time around, claiming it would cost them too much to contact each law firm to ask permission to disclose their ‘hospitality’ to court employees. The SCS claimed they would have to contact every lawyer who gave a gift and this would cost too much to provide the information.

DOJ journalists took the matter up with Rosemary Agnew - the Scottish Information Commissioner – who requested Courts Chief Eric McQueen provide an explanation as to why the courts were blocking release of information on hospitality relationships between the legal profession and court staff.

John Kelly, Freedom of Information Officer at the SIC said: “Having written to and discussed the matter with the SCS, without being required to do so by way of a formal Decision Notice, the SCS has agreed to provide you with the information requested, subject to redactions in terms of section 38(1)(b) of FOISA on the basis that to disclose some of the names of individuals would breach the first data protection principle of the Data Protection Act 1998 (the DPA). I understand that the names of Solicitor and Law Firms will be provided.”

After the intervention of the Scottish Information Commissioner, the SCS subsequently released the hospitality list to journalists.

Richard Warner for the SCS said: “Having reconsidered your request, and the SCS response, I now attach a list which indicates law firms where this information has been recorded.  For the reasons stated in our earlier response this does not include the names of any individuals concerned as there could have been no expectation on their part that this information would be circulated or published widely.  As indicated previously, steps are being taken to ensure that individual persons are made aware at the relevant time that their details made be released as a result of an information request.”

Previous articles on hospitality and gifts to the Scottish Courts and Tribunals Service, reports on gift giving to court employees and investigations by Diary of Injustice on the relationship between law firms and SCTS staff can be found here Hospitality and Gifts to the Scottish Courts.