Wednesday, January 28, 2015

COURTS ON CAMERA: Television & Twitter ‘may’ be allowed in Scotland’s “Victorian” courts but on judiciary’s terms and with permission of sitting judge

Cameras & tweets in Scotland’s courts – under judicial terms only. CAMERAS and tweets could be allowed in Scotland’s courts, according to the findings of a review carried out by Court of Session judge Lady Dorrian on recording and broadcasting of proceedings in court, and use of live text-based communications.

The proposals to introduce television and other digital media to courts on a limited, controlled basis, come almost twenty three years after Lord Hope - Scotland’s top judge in 1992 issued a statement to the media he was “considering the television question for some time and now believed it was not in the public's long-term interest for restrictions to remain.”

Accepting the limited proposals for members of the media to film and tweet in court, Scotland’s current top judge Lord President Brian Gill (72) said: “I am grateful to Lady Dorrian and her group for having carried out this exercise so thoroughly. These well-considered recommendations have the support of the judges. I accept all of the recommendations. They are entirely appropriate in the contemporary world. My office will now prepare guidance on the implementation of Lady Dorrian’s report.”

However, Gill – who previously threatened judicial censorship of journalists access to documents and court hearings in a fit of pique against the media last year - said journalists will only be granted use of digital media in courts if they register with the Scottish Court Service.

In a speech to a conference on Digital Justice this week, Lord Gill – who is currently fighting a two year battle with the Scottish Parliament against proposals to create a register of judges interests, wealth and links to big business - made it clear any member of the press who was going to tweet or make use of digital equipment must do so on the court’s terms only. Gill also said anyone not registered with the courts could not tweet unless the judge hearing the case gave permission to do so.

Gill said: “Journalists who register with the Scottish Court Service to gain access to the electronic portal-based system, should also be required to undertake compliance with the Contempt of Court Act. Journalists so registered should be permitted to use live text-based communication. Any person who is not on the register should require the permission of the presiding judge.”

And, in a separate submission to the consultation, an unidentified Court of Session judge who backs the proposals to introduce cameras said there would have to be tight controls on how cases were filmed.

The anonymous judge wrote: “Educating the film company regarding the nature of court proceedings the paramount importance of the interests of justice, and cultivating a relationship of trust with the film company so that the risk of erroneous impressions/misrepresentations, is minimised.”

In summary, the report recommends the following:

*Filming of civil and criminal appeals, and legal debates in civil first instance proceedings, such as judicial review or procedure roll hearings, should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines.
*The court should allow criminal trials to be filmed for documentary purposes in certain circumstances, subject to the safeguards referred to in the report. Cases involving children, sexual offences and vulnerable witnesses should not be filmed.
*No live transmission or filming for subsequent news broadcast should be allowed for criminal first instance business or for civil proceedings involving witnesses.
*For subsequent news broadcasts, the delivery of sentencing remarks of the judge should be permissible, with filming focused only on the sentencing judge.
* Filming of criminal trials for live transmission should not be allowed.
*In civil cases at first instance, filming for documentary purposes only should be allowed, but should exclude certain groups such as family cases and those involving asylum seekers.
*A structured approach to considering applications to film.
*All filming should be subject to robust, clear and comprehensive guidelines.  
*Journalists who register in advance with the Scottish Court Service should be permitted the use of live text-based communications such as Twitter from court, subject to guidelines which will be issued in due course.

The consultation and review – chaired by Lady Dorrian, comprised almost exclusively a judicial membership of Lord Bracadale, Lord Woolman, Sheriff Principal Stephen, and Sheriff Drummond. The group was supported by: Christopher Nicholson, Deputy Legal Secretary to the Lord President; Elizabeth Cutting, Head of Judicial Communications; Steven D’Arcy, Head of Strategy and Governance, Judicial Office for Scotland.

While the move to bring more transparency to Scotland’s courts is a welcome one, no substantive explanation has been given for hold ups in televising courts or why it has taken over two decades to address earlier statements in 1992 by former top judge Lord Hope on the introduction of cameras and other technology to Scotland’s antiquated courts – branded “Victorian” and ‘unfit for purpose’ by Gill himself in the Civil Courts Review.

During 1992, Lord Hope, the then Lord President, in effect opened Scotland's courtroom doors to the cameras when he announced, through the Principal Clerk of the Justiciary in Edinburgh's supreme courts, that modern technology had now advanced to a state 'where proceedings in court could be televised without undue interference in the conduct of proceedings'. Twenty Three years later in 2015, the glacial pace of change in Scotland’s courts once again promises occasional cameras & tweets, but only when judges deign it in their interests or perhaps, the interests of justice - to allow.

And, despite receiving over £80million pounds a year from public coffers to run the Scottish Courts Service, and multi million pound blank cheques to fund items such as the recent £60 million refurbishment of Parliament House in Edinburgh – Lord Gill’s seat of power, it is a fact public records on what goes on in the civil courts are hard to come by, with findings routinely anonymised where vested interests including lawyers are concerned of being identified in dodgy cases where judges secretly linked to litigants, law firms & big business, are not serving the interests of justice.

TOP JUDGE ISSUED THREAT TO BAN MEDIA IN COURT:

During the summer of 2014, in a bizarre fall out with the press, Scotland’s top judge Lord Brian Gill issued an edict threatening to ban journalists and the press from accessing court papers and hearings.

Lord Gill’s warning to the media read as follows:

NOTICE: ADVANCE ACCESS OF THE MEDIA TO COURT DOCUMENTS

1. For some time the Court has been reviewing the practice of allowing journalists an opportunity to see complaints and indictments for note-taking purposes before cases  call in court.The review was necessary because of significant concerns arising from the  Data  Protection Act 1998 (“DPA”) in relation to the disclosure of personal data and sensitive personal data in these documents.

2.  The current  practice  gives  journalists  an  opportunity to attend and report  on noteworthy cases; but  it is now clear that the information being disclosed is excessive for this purpose.

3.  In due course the courts will  move to an electronic  portal-based system  that will enable the media  to access  securely  information about  forthcoming  cases and,  in  time,  other  information  such  as  reporting  restrictions.  This  will provide sufficient information for reporting  purposes  but will ensure that  the court will comply with the requirements of the DPA.

4.  In  the  interim  the  current  practice  will  continue,  but  on  the  strict understanding that no information obtained from a complaint or indictment is to be published before a case calls in court.  In the light of recent breaches of that  understanding,  the  media  are  reminded  of  their  responsibilities  in  the matter.

Brian Gill Lord Justice General Edinburgh 30 July 2014

Tuesday, January 20, 2015

DECLARE THE JUDGES: New Judicial Complaints Reviewer supports proposal to Scottish Parliament to create a register of interests for judges

New Judicial Investigator Gillian Thompson follows Moi Ali in support for judges register. SCOTLAND’S new Judicial Complaints Reviewer (JCR) Gillian Thompson OBE has told a Scottish Parliament Committee she supports proposals currently before MSPs to create a register of interests for Scotland’s judges.

JCR Gillian Thompson’s backing for Petition PE1458: Register of Interests for members of Scotland's judiciary comes after Moi Ali - Scotland’s first ever Judicial Complaints Reviewer – quit her role as JCR after describing the job as “window dressing” during an evidence session with MSPs in September 2013, reported here: As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

In responses to MSPs questions, Moi Ali revealed she had no statutory powers over judicial complaints, and received no cooperation from Scotland’s top judges.

Now, the new JCR - Gillian Thompson - who also authored a report on undeclared interests of Scottish Court Service staff in relation to how interests are recorded in the Scottish Court Service - has given her full backing for the judges register petition, writing in a letter to MSPs stating: “As a general principle I am in favour of those in public life, whether paid or unpaid, being required to maintain a register of interests including hospitality given or received.”

Ms Thompson continued: “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.”

Ms Thompson has also disclosed her own interests to MSPs, following on from the example set by Moi Ali - who created her own register of interests while in the office of JCR.

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.”

Submission from JCR Gillian Thompson to Public Petitions Committee: I have seen the evidence provided to the Committee by my predecessor Moi Ali in May 2013, what was said by the Lord President in his written submission of 21 November 2014 and previously, the evidence provided by the Minister for Community Safety and Legal Affairs on 9 December 2014.

As a general principle I am in favour of those in public life, whether paid or unpaid, being required to maintain a register of interests including hospitality given or received.

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. I think it is difficult for those outside the Judiciary to understand the notion that the Oath taken by Judges on appointment should be regarded as sufficient evidence of their commitment to uphold the principles of public life.

Of course a register as called for by this petition would require to be kept up to date and the burden of cost and responsibility would have to be borne by, most likely, the public purse. It seems to me however that the costs attached would be offset to a degree by an increase in confidence and, conceivably, a drop in complaints.

In respect of the Annual Report by the Judicial Complaints Reviewer (JCR) for the period 1 September 2013 to 31 August 2014, the Report is now on the JCR website. It was sent in draft to the Lord President prior to publication.

Finally, I have undertaken to publish my own register of interests on my website. Currently in addition to my appointment as JCR for which I am paid a daily fee of £213 over a restricted number of days annually,  I am a non- executive director of Registry Trust Ltd a not- for-profit company based in London (fee of £8,200 paid for 10 days work a year), I am a Scottish Trustee of Stepchange Debt Charity (unpaid), a Scottish Ambassador for Tomorrow’s People a charity that works with disadvantage young people to find employment (unpaid). For each body I am required to provide regular updates of my interests. I am a member of the English Speaking Union Scotland and the Scottish Dachshund club. I make a monthly payments in support of Cancer Research, the RSPB and the SSPCA.

I hope this is helpful in the Committee’s on going consideration of petition PE1458.

While Scotland’s top judge continues to oppose the creation of a register of interests, MSPs held a debate in the Scottish Parliament’s main chamber on Thursday 7 October 2014. The debate resulted in cross party support for the proposal. MSPs overwhelmingly supported motion S4M-11078 - in the name of Public Petitions Convener David Stewart MSP on petition PE1458, urging the Scottish Government to give further consideration to a register of interests for judges.

The parliamentary debate was reported by Diary of Injustice along with video coverage here: TRANSPARENCY TIME: Top judge & Scottish Government told to rethink refusal on declarations of judges as Holyrood MSPs support calls to create a register of judicial interests. The coverage of individual MSPs who spoke in the debate along with video footage & the official record, is here: Debating the Judges

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

Saturday, January 17, 2015

ROGUE FEE: Legal regulator SLCC reveals rogue solicitors compensation data, admits powers to nullify dodgy legal fees only used in two cases during 2013/14

Regulator admits sparse use of powers on legal fees. DOCUMENTS released under the Freedom of Information Act reveal the ‘independent’ regulator of legal services in Scotland - the Scottish Legal Complaints Commission (SLCC) is failing to use its powers to reduce legal fees to zero when presented with detailed complaints & evidence about rogue lawyers – even after the regulator eventually decides the lawyer is guilty of failing their client.

Among a raft of data on how compensation is paid by the legal profession to clients after complaints have been investigated, upheld, or mediated, the regulator was forced to admit it had used powers to nullify fees in only two cases in the past year which resulted in clients not having to pay their lawyer a penny.

In one case, the SLCC said fees were recorded as being reduced to nil at the “determination stage” – where the SLCC usually conclude a solicitor is guilty of a variety of offences including having providing poor legal services to clients.

And, in stark contrast to the SLCC’s claims of overall success in mediation, the regulator also revealed the only other case were fees were reduced to zero was a mediation case - raising questions about why lawyers are able to recover any fees at all after being found guilty of ruining a client’s legal affairs.

When asked to give a total amount of exactly how much compensation had been paid at the time of the release of the SLCC 2014 Annual Report – which made a big show of £365K being paid to clients in compensation & fee abatement deals, the SLCC claimed it had no records and therefore could not answer. The regulator said law firms who agreed to rebate fees or pay compensation did not tell the SLCC when such repayments were made, if at all.

The information released by the regulator which details compensation and fee reductions paid in the last year, 2013-2014, reveals the highest award made by the regulator against a rogue solicitor or law firm - was £20,000 - while the lowest award was a mere £50.

While awards of compensation to clients and fee rebates are up, the fact that other than in only two cases, all solicitors & law firms who were found to have provided clients with poor legal services were still able to recover some amount of fees from their clients raises the prospect that clients who complain about their solicitors are not making the point clear enough to the SLCC they  expect fees reduced to nil.

In one case currently being looked into by journalists, it appears a client who made a complaint about their solicitor and asked for fees to be reduced to nil was talked out of it by the SLCC itself.

The information released by the Scottish Legal Complaints Commission in response to questions on compensation & fee reductions during 2013-2014:

1. How much of the £365,000 listed in the latest 2013-2014 annual report as Compensation & fee reductions for complainers at all stages has been paid at the time of the report's publication;

Compensation/fee rebates agreed as a result of a settlement reached at investigation stage or by way of mediation will generally be paid directly by the practitioners involved to the complainers. Although the SLCC will check that agreements are adhered to, it does not hold records of how much of the compensation/fee refunds has been repaid to complainers in these cases and it is not copied into correspondence between practitioners and complainers about payment arrangements.

2.    How much (amount) is fee reduction & number of cases where fee reduction took place and scale of awards;

The total amount for fee reduction is broken down between cases resolved at investigation stage, cases resolved by way of mediation and cases which have gone to determination. Figures are produced for each of these stages. The figures are recorded for the last financial year July 2013 - June 2014.

At investigation stage fee reductions were made in 15 cases. £9360.35 was agreed in respect of fee refunds. The lowest amount of fee reduction agreed was £91 and the highest was £2112.

At determination fees were abated in 30 cases. The SLCC does not have complete records of the total fee rebates awarded in those cases as it is often not provided with details of the final figure for the fee rebate from the practitioners once a determination is made. I can, however, advise that from our records the total fee rebates awarded at determination amounted to more than £29,608.99. The lowest figure for fee rebates at determination I have identified is £50.50 and the highest is £14,876.32.

At mediation fee reductions were made in 12 cases. A total of £29,610.40 was agreed in respect of fee reductions. The lowest amount of fee reduction I have identified was £488 and the highest was £13,417.74.

3.    How much (amount) is compensation and number of cases where compensation was awarded including scale of awards;

The total figure for compensation is broken down between cases resolved at investigation stage, cases resolved by way of mediation and cases which have gone to determination. Figures are produced for each of these stages.

The figures are recorded for the last financial year July 2013 - June 2014.

At investigation 44 cases were resolved and the sum of £50,627.56 was paid in compensation for injury and distress in respect of those cases. The lowest amount of compensation agreed was £50 and the highest was £6752.66. In 4 cases compensation was paid for losses. The total paid for losses amounts to £22493.50, with the lowest amount being £1000 and the highest £17,000.

At determination compensation was awarded in 86 cases amounting to £191,515.56. This amount covers compensation for injury and distress as well as compensation for losses and outlays. The lowest amount of compensation awarded was £50, the highest was £20,000.

At mediation compensation was agreed in 31 cases amounting to £37,187. This amount covers compensation for injury and distress as well as compensation for losses and outlays. The lowest amount of compensation agreed was £50 and the highest was £8750.

4.    If any cases resulted in fees to complainers being completely nullified and if so how many (and on what scale - amount);

At investigation we have no records of any cases where fees were reduced to nil. At determination we have records of fees being reduced to nil in one case. At mediation we have records of fees being reduced to nil in one case.

5.    Costs are listed as £43,000 for enforcement of compensation, fee refunds and levy payments. How much of this has been recovered and how many civil actions or enforcement actions, if any, have been raised to recover these amounts.

The figure of £43,000 provided in the annual report is an estimate of the staff costs for the work undertaken in recovery of compensation and levy payments etc. The amount does not cover the legal costs of raising actions for recovery of funds. This sum is not recoverable.

An insider at a consumer protection body who was passed the figures by Diary of Injustice commented: “Consumers who make complaints about their solicitors should keep a written record of any material they send to the SLCC while making it clear from the outset one of the goals they expect from the complaints process is for any legal fees to be reduced to nil.”

Detailed coverage of the SLCC’s latest annual report, released in December 2014 can be read HERE, and a further report on why the SLCC has refused to name one single rogue solicitor since 2008 and how solicitors end up recovering compensation they are forced to pay out features HERE

Friday, January 09, 2015

DODGE GUIDE FOR ADVOCATES: ‘Independent’ legal regulator launches guide for Faculty of Advocates - on how to deal with allegations of poor legal services & dodgy court performances

Regulator's guide for advocates written by advocates.. ADVOCATES who face complaints over poor provision of legal services & sub par performances in Scotland’s courts now have a new weapon in dealing with complaints - in the form of a ‘help guide’ on how to deal with dissatisfied clients.

The nine page booklet, issued yesterday by Scotland’s ‘independent’ legal regulator – The Scottish Legal Complaints Commission (SLCC) - was developed with the co-operation and input of the advocates own lobby group - the Faculty of Advocates.

SLCC CEO Matthew Vickers welcomed the guide, saying: “Improving standards of complaint handling and service is an important part of our work. We’re pleased to see the interest shown by members of the Faculty of Advocates in the guide we’ve produced.”

The guide, published below, covers six basic principles of complaints handling and three steps to effective complaint handling.  It also includes an example of a model complaint handling process for Scotland’s highly paid, mega earning advocates.

However the guide’s references to transparency & fairness appear far from the reality of how the legal profession deal with complaints against its own in the environment of self regulation – where on occasion, advocates have used law firms to threaten clients who make complaints about their conduct. In at least one instance known to the media, an advocate even used Police Officers in an attempt to escape a complaint.

The guide states: At the outset, the approach to the complainer should be empathetic and not defensive - a defensive response will usually prove counter-productive. Try to see the complaint from the client's perspective and engage openly, demonstrating an understanding of the issues which the complainer has raised. Bear in mind that it may have been difficult for the complainer to raise the matter by way of a complaint, particularly where they are emotionally involved.

It then goes on to claim: To achieve and maintain credibility it is important that the complaints process is transparent and fair. Complaints should be dealt with in a consistent approach which is, at the same time, proportionate to the complaint. The response to the complaint should be based on the facts surrounding the matter complained of rather than on assumptions. Each individual advocate is responsible for handling any complaint against him or her, but communications may be passed through Counsel's Clerk. Guidance can also be obtained from a Faculty Office Bearer or from the Dean's Secretariat.

A list of ‘dos and don'ts’ to advocates on the run from complaints contain the following suggestions:

• Be alert to any expression of dissatisfaction which should be regarded as a complaint, or at least a potential complaint, and treat it as such. Remember that this could be received by your Clerk or a member of FSL staff dealing with an outstanding fee.

• Engage with the client to understand the issue at hand. Do this through your Clerk if you wish to maintain some distance.

• Be empathetic with the complainer, be aware of the impact which the issue may have had on the complainer, including the emotional impact of bringing the matter to your attention.

• Don't avoid the problem or hope that it will go away; always respond to a complaint.

• Don't delay dealing with the complaint - the last thing you want is an additional complaint about concerns not being dealt with in good time.

Finally, don't ignore complaints from third parties - the SLCC can accept complaints from parties other than a practitioner's own clients and you need to treat these as seriously as a complaint from your own client, although it is important to bear in mind any confidentiality issues

Commenting on the guide, former MSP and now Vice-Dean of Faculty Gordon Jackson QC said: “As the SLCC indicated in its most recent annual report, there are very few complaints about advocates. As a result, it is helpful to have been able to produce a guidance document for those members who may not have had to deal with a complaint," said Gordon Jackson, QC, Vice-Dean of Faculty.

"The Faculty is and always has been committed to promoting the provision by its members of the highest quality legal services. It is important that the public should know that if an advocate receives a complaint, it will be handled properly and in accordance with standards approved by the SLCC. We have therefore been pleased, in the course of revising our complaints and disciplinary procedures, also to have worked very closely with the SLCC to prepare guidance for our members on complaints handling."

Vice Dean Mr Jackson - who once lost a £50K claim for slipping on ice covered pavements on Johnston Terrace in Edinburgh after temporary judge Gordon Reid QC said he had no relevant case against Edinburgh City Council – also sought to reassure the public over how complaints about advocates are handled.

He said: “The Faculty is and always has been committed to promoting the provision by its members of the highest quality legal services. It is important that the public should know that if an advocate receives a complaint, it will be handled properly and in accordance with standards approved by the SLCC.”

The guide was formally launched at an event on 8 January at the Faculty of Advocates by the SLCC’s Head of Oversight and the Dean of Faculty.  The guide follows a previous guide for solicitors.  Both guides are available on the SLCC’s website at Guidance and Advice for Practitioners pages.

Have you had a bad experience with an advocate, or made a complaint about an advocate and found the regulation system failed to deal with it? Tell us about it at scottishlawreporters@gmail.com

Wednesday, December 31, 2014

ETHICAL DOH'A: 2014 - The year Scotland’s top judge preferred visiting a car museum in Qatar to appearing before the Scottish Parliament to account for judicial tax dodges, secret wealth, crime & links to big business

Top judge Lord Gill preferred Qatar state visit to Holyrood’s questions on judicial interests. WHO would have thought Lord Brian Gill - Scotland’s ermine clad top judge - with a long ‘esteemed’ legal career, author of many a court ruling, author of the much watered down Civil Courts Review, an international emissary with an accumulated intergalactic amount of air miles, hand shaker of presidents and, yes, a church music fan, would rather travel to Qatar than appear before MSPs at the Scottish Parliament.

It happened. It is part of history.

Brian Gill (72), Scotland’s longest serving and most powerful judge became the first judge to refuse to appear before the Scottish Parliament on at least two occasions when he was summoned to attend the Public Petitions Committee and give evidence on Petition PE1458: Register of Interests for members of Scotland's judiciary.

Lord Gill’s contempt for the petition and anyone daring to question the judiciary was obvious. Transparency – in his world – is a NO-NO.

After all, what would happen to the courts if it became public that members of the judiciary have secret criminal convictions – some even for fraud, and held vast undeclared multi-million pound property portfolios, held investments in companies convicted of criminal offences at home & abroad, invested in tax avoidance schemes, earned undeclared money from law firms & big business, held secret directorships and influenced the law to the point of ensuring their own interests never became public.

You couldn’t make it up. But, here we are. It is all true. MSPs know it.The judiciary know it, and thanks to the media, the public now know it. The judiciary, are even more bankers than the bankers themselves.

As 2014 began, the concern of Scotland’s top judge was so great over the proposal being investigated by MSPs to register the vast, undeclared wealth of Scotland’s judiciary – Lord Gill and Stephen Humphries  - the Chief Executive of the Judicial Office - were forced into attending a compromise backroom meeting at Holyrood with two MSPs instead of facing the full Petitions Committee in public.

There are various versions of what took place at this meeting, and what was said, or not said. Suffice to say, legal sabre rattling was in play, warnings of dire consequences if this petition went ahead. Perhaps the meeting was best summed up - as one senior Scottish Parliament insider jokingly put it – “Lord Gill appeared to levitate on a magic carpet looking down on others present”.

In fact, as legal insiders later revealed – Gill had expected MSPs to meet him in his own private court chambers in Parliament House – Gill’s own seat of power – recently lavished with £60 million of taxpayers money spent on refurbishing door knobs and a stained glass window.

However, the Scottish Parliament was wise to insist the meeting took place on it’s own turf.

Leaks from within the Scottish Courts Service pointed to Gill agreeing to the meeting out of fear the ‘top judge’ may be asked a question in public he may have to refuse to answer.

What a spectacle that would make. Scotland’s much vaunted top judge – a pillar of the establishment - being asked by MSPs about the interests of his colleagues – only to refuse to reply.

But let’s not stop there.

Lord Gill clearly is not a friend to transparency, or a believer in a free press.

An edict issued by Gill during the summer on media access to the courts laid down the law, and threatened to kick journalists out of courtrooms if the media did not play ball. It was clear from the top judge – the courts, and judiciary are out of bounds for the press.

Gill threw around various accusations in the edict, yet none of them stuck. Court Service employees were forced to deny most of it, even the insinuations of data protection breaches. How embarrassing for a top judge.

Then, there was an ill fated attempt to leak some material in the hopes of giving Gill and his out of control Judicial Office – a leg up. Big fail.

As the year marched on, it was revealed our top judge Lord Gill travelled to Qatar on a five day state visit, paid for by taxpayers.

During Brian’s travels around Qatar – identified as a funder of Islamic State (IS) and other wars around the middle east, and the globe, Lord Gill gave a speech on judicial ethics, making sly references to how the locals back home in Scotland are kept in check and – how judges respect their own oath, written like some shopping list for a visit to a supermarket. Shocker – the much used judicial oath, is written by themselves – the judiciary.

Gill’s lavish five day trip to Qatar also included a visit to a museum full of automobilia and other old wrecks. Clearly all higher up on his list of preferred venues to a visit to Holryood and answering questions from MSPs on the vast interests of Scotland’s judiciary.

But, the good lord’s bad attitude towards transparency and the Scottish Parliament bore some fruit.

During Scotland’s first ever debate on judicial interests, which took place in the Scottish Parliament on Thursday 9 October 2014, it was clear from the outset Lord Gill’s international junkets including his caravan to Qatar, his arrogance towards transparency, accusations against the media, and how msps themselves were clobbered with Brian’s own interpretation of the Scotland Act - resulted in cross party support for the proposal to register judicial interests.

The debate saw MSPs from all parties rounded on Lord Gill and his exploits.

Independent MSP John Wilson said: “No doubt the associated media coverage of Lord Gill’s non-appearance at the Public Petitions Committee has led to him being given the title of Lord No-No. That is not something that I particularly welcome, although, quite frankly, it seems to have a degree of merit for an individual who spent six days in Qatar to give a speech about transparency and judicial regulation that lasted one hour, but who could not find the courtesy to accept an invitation from a mandatory committee of this Parliament.”

Mr Wilson continued: “I welcome the opportunity to raise awareness of the petition and of the petitioner’s work in relation to it, which could be dismissed by some unkind types as a boring constitutional matter. However, as others have said in today’s debate, linking it to registers of interest in other areas clearly highlights the work that the Parliament must do to ensure that everyone, no matter who the public are dealing with, is held in high regard. A register of interests for judges is an area in which we could move forward and build more confidence in the system that we have in place.

“In the final paragraph of the speech that Lord Gill gave in Qatar, he said: One drawback of a jurisdiction steeped in tradition is its slow reaction to change and to modernise. Lord Gill should reread his own words and reflect on that speech, and maybe he could give the same speech in Scotland and bring the judicial system up to a standard that we would all like it to hold.”

Jackson Carlaw MSP, for the Scottish Conservatives, and also a member of the Public Petitions Committee even joked the Scottish Parliament should convene in Qatar to speak to Lord Gill. He said “John Wilson is absolutely right. I have here a copy of the 16-page speech that the Lord President gave in Qatar, incorporating the very issues that we addressed.Had the committee known, we could have applied to the parliamentary authorities to go to Qatar to hear the speech in person and tackle the Lord President there. If he did not come to the committee, the committee could have gone to him”

Scottish Labour MSP Neil Findlay roundly condemned Lord Gill for failing to show at Holryood, calling the judge’s attitude “an outrage”.

Neil Findlay said: “I fully support the proposal for a register of interests for members of the judiciary. After all, we have the right to know whether those who are involved in determining whether a man or woman loses their freedom have any financial, business, social, political or other relationship that could influence any decision they might make. Currently there is no compulsion to declare such an interest and we rely on what is known as the fair-minded observer test. That, to me, is wholly inadequate. Through history, we have heard allegations of religious, class, financial and political bias or of members of certain organisations being helpful to each other during trials. I can think of many industrial and other disputes that have gone to court where claims of bias and collusion have been made—and, I believe, with justification.”

“That situation has to end, and we should have a register with clear rules that leave no one in any doubt about who and what should be registered. Is it really a surprise to people that the legal establishment does not want such a register, and is it not an outrage that Lord Gill had such contempt for this Parliament that he refused to attend a particular meeting? Does that not make people even more suspicious of his motives?”

It was clear. MSPs understood the arguments. Judges should declare, and declare all of it, not some of it.

MSPs overwhelmingly supported motion S4M-11078 - in the name of Public Petitions Convener David Stewart MSP on petition PE1458, urging the Scottish Government to give further consideration to a register of interests for judges. The parliamentary debate was reported here: TRANSPARENCY TIME: Top judge & Scottish Government told to rethink refusal on declarations of judges as Holyrood MSPs support calls to create a register of judicial interests

Since the debate in October, we have witnessed the spectacle of Paul Wheelhouse – the new Minister for Community Safety & Legal Affairs and his ‘evidence’ to the Public Petitions Committee. MSPs, apart from struggling Kenny MacAskill, did not buy into Mr Wheelhouse’s reasoning against transparency – probably because the Minister sounded like he was using the scrubbed drafts of Lord Gill’s more menacing letters to MSPs warning transparency cannot be accepted by the judiciary.

And, what of Lord Gill? Scurrying around like a panicked Homer Simpson (or perhaps Grandpa Simpson), he is doubtless planning some new diplomatic trip to a far flung country, perhaps his next judicial move against transparency and any talk of reforming Scotland’s closed shop, ultra expensive, ultra inaccessible and rather dodgy – justice system. Not a very fitting legacy for Scotland’s longest serving judge.

Anyway, that was the year that was. 2014. We found out Qatar and junkets are far more important to rich, secretive judges, than accounting for their interests. More to come in 2015.

Saturday, December 27, 2014

TOO MANY SECRETS: Legal Affairs Minister ‘anti-transparency’ evidence to MSPs a ‘poor substitute for top judge’ as Scottish Parliament Petitions Committee consider next move on proposal to create a register of interests for judges

Minister fails to convince MSPs judges wealth & links to big business should remain secret. MSPs from the Scottish Parliament’s Public Petitions Committee are now deciding their next moves in their investigation of proposals to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary, after taking evidence from Paul Wheelhouse - the Minister for Community Safety & Legal Affairs.

The Petition Committee’s evidence session with Mr Wheelhouse, taking place at Holyrood on Tuesday 9 December, published today in it’s entire written record & accompanied by video footage, also heard of comparisons with a US register of financial interests for judges which could serve as a model for any register of judges interests in Scotland.

Petition PE1458 – a proposal to increase judicial transparency and 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.

Legal insiders who have studied Mr Wheelhouse’ evidence believe the Minister gave several misrepresentations to members of the Committee about interests disclosures of Scotland’s judges. A Scottish Parliament insider branded Mr Wheelhouse as “anti-transparency” and “a poor substitute for Lord Gill”.

Lord President Lord Brian Gill – Scotland’s top judge has refused several invitations to appear before the Scottish Parliament and explain his opposition to the creation of a register of judicial interests.

Mr Wheelhouse also followed Lord Gill’s lead in criticising the media, implying a register of judicial interests may cause judges some problems if the press find out more about judges secret interests, such as tax avoidance, investments in companies with criminal records, criminal records & convictions, and other matters the judiciary prefer not to reveal to the public.

None of Mr Wheelhouse’ reasons against a register of interests for judges were accepted by members of the Petitions Committee.

It also became clear from admissions by Mr Wheelhouse’ civil servants they and Mr Wheelhouse had not even met Lord Gill, or the new Judicial Complaints Reviewer – Gillian Thompson – who. it was confirmed, had not even bothered to reply to the Petitions Committee request for sight of the latest JCR annual report.

It also came out during questions from MSPs that neither the Minister or civil servants had yet had sight of Lord Gill’s proposed changes to the complaints rules – even though the consultation held by the top judge on rules changes had ended over a year ago.

Input in the debate from new Committee member Kenny MacAskill was also lampooned by parliamentary insiders, noting the sacked Justice Secretary’s attempt to criticise how judges are selected in America, gave little weight to reasons to conceal the secrets of wealthy Scottish judges. Mr MacAskill was rushed in to the Petitions Committee to replace the popular Chic Brodie – who supports transparency and declarations of interests.

Legal Affairs Minister Paul Wheelhouse evidence to Petitions Committee Petition 1458 Register of interests for members of Scotland's judiciary

Judiciary (Register of Interests) (PE1458)

The Convener:The next item of business is an evidence-taking session with the Scottish Government as part of the committee’s consideration of PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. Members have a note by the clerk and the submissions.

Nothing has been received from the Judicial Complaints Reviewer. However, the petitioner notified the clerk that the JCR’s annual report to 31 August, which covers the tenure of the previous office-holder, Moi Ali, was published on Friday. Some members might have already received it.

I welcome Paul Wheelhouse, the Minister for Community Safety and Legal Affairs. He is accompanied by Kay McCorquodale and Catherine Hodgson from the Scottish Government’s civil law and legal systems division.

I invite the minister to make a brief opening statement of approximately five minutes.

The Minister for Community Safety and Legal Affairs (Paul Wheelhouse): Thank you for inviting me to speak to the committee today.

I welcome this further consideration of the issues around a register of interests for the judiciary and, in particular, the sufficiency of the existing safeguards.

The Scottish Government takes the view that it is not necessary to establish a formal register of judicial interests. That is because, as my predecessor, Roseanna Cunningham, has stated, the Scottish Government considers that the current safeguards are sufficient to ensure the impartiality of the judiciary in Scotland. There is no evidence to date that the safeguards have failed.

There are three important safeguards. The first is the judicial oath, taken by all judicial office-holders before they sit on the bench, which requires judges 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, which states at principle 5 that all judicial office-holders have a general duty to act impartially. In particular, it notes:

“Plainly it is not acceptable for a judge to adjudicate upon any matter in which he, or she, or any members of his or her family has a pecuniary interest.”

The third safeguard is in the Judiciary and Courts (Scotland) Act 2008, which contains provisions to regulate and investigate the conduct of judicial office-holders. Under section 28, the Lord President has a power to make rules for the investigation of

“any matter concerning the conduct of judicial office holders”.

The Complaints about the Judiciary (Scotland) Rules were updated in 2013. In autumn 2013, the Lord President also consulted on the adequacy of the rules. The former Judicial Complaints Reviewer contributed to that consultation. I understand that new rules, together with accompanying guidance, will be published early in 2015. The new rules will simplify the complaints process for all concerned and will clarify what can be properly investigated.

In addition, as members are aware, on 1 April 2014, the Scottish Court Service set up a public register of judicial recusals, following the former JCR’s call for greater transparency and accountability and the informal meeting between yourself, convener, the deputy convener at the time—Chic Brodie—and the Lord President. The register sets out the reason why a member of the judiciary has recused himself or herself from hearing a case. That is a welcome addition to the safeguards that I have already mentioned.

With regard to the complaints system, I am aware of the criticisms that were made in the former JCR’s annual report, which was published last week. I acknowledge the former JCR’s positive influence, during her time in office, over the handling of complaints about judicial conduct. That has contributed to the improvements that are being made to the complaints system.

It is, of course, of vital importance that judges are seen to be independent and impartial. They must be free from prejudice by association or relationship with the parties to a litigation. They must be able to demonstrate impartiality by having no vested interest, such as a pecuniary or indeed familial interest, that could affect them in exercising their judicial functions.

Setting up a register of judicial interests would be a matter for the Lord President, as head of the judiciary in Scotland. The Lord President takes the view that a register of pecuniary interests for the judiciary is not needed and that a judge has a greater duty of disclosure than a register of financial interests could address. The statement of principles of judicial ethics states that a judge’s disclosure duties extend to material relationships, and the new register of recusals addresses that issue.

It is also important to bear in mind the potential downsides of establishing a register of judicial interests. The Lord President said in his written evidence to the committee that it is possible that

“information held on a register of judicial interests could be abused.”

He went on to say:

“If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequences of eroding public confidence in the judiciary”.

The Lord President provided further information about the new register of recusals in his letter to the committee of 21 November, which records that all but two judicial recusals were voluntary. There is no record of a case in which a judge or sheriff who has an interest that would justify recusal has had to recuse him or herself after a party has raised the matter. There is, therefore, no evidence to demonstrate that the existing recusal system is not working.

I acknowledge the work that the committee has done in taking forward the issues that are raised in the petition. As the convener acknowledged in the chamber debate,

“the New Zealand bill was ultimately withdrawn on the basis that agreement was reached to improve the rules on recusals and conflicts of interests.”—[Official Report, 9 October 2014; c 64.]

We have similarly had the opportunity for open discussion of these issues. Improvements have already been made in Scotland, such as the introduction of the public register of judicial recusals, and improvements to the complaints rules are about to be introduced. The Scottish Government’s position is that a formal register of judicial interests is neither practical nor necessary.

I am happy to take questions.

The Convener: Thank you, minister. Why should the judiciary be treated any differently from other holders of public office, such as ministers, MSPs or MPs?

Paul Wheelhouse: The point that was made by the Lord President in his letter of 21 November, to which I just referred, is pertinent. I recognise that, as politicians, we have a duty to be accountable to the public who elect us, and we need to be able to demonstrate that we do not have any conflicts of interest. However, the position of the judiciary is somewhat different. As the Lord President outlined, judges are not able to answer for themselves if they are criticised or attacked for their interests, which means that they are vulnerable in that sense. In addition, they or their families might be open to threats or intimidation if property details were registered or if other details were shared that might cause security concerns.

In my previous role, I was aware of Scottish Environment Protection Agency officials who were stalked and harassed on social media, as were their families, and who were being regularly physically and verbally threatened by individuals who were allegedly involved in serious organised crime. I have therefore seen that people of ill intent can attempt to intimidate officials.

The more we protect the privacy of the judiciary in relation to details that could otherwise create security concerns for them, the better, as that will ensure that no one attempts in any way to influence judges’ decisions.

The Convener: How do you respond to the argument from the petitioner and the previous JCR that the current system does not provide individuals with sufficient protection from judicial bias?

Paul Wheelhouse: I am aware of those concerns. I recognise the genuine concerns that have been raised by members of the public, including Mr Cherbi, and, indeed, by committee members during the debate on 9 October. I stress that no one is pointing the finger of blame at any particular judge, but I am concerned to ensure that there is a perception that the judicial system in Scotland is above reproach and that there is no danger of bias in the decision-making process.

The concern that has been expressed has been addressed in a number of respects. We have the JCR and the ability to lodge a complaint against the judiciary if a conflict of interest that has not been disclosed comes to light. There is, therefore, a mechanism for people to raise a complaint, which the JCR can take forward.

As I said in my opening remarks, we have no evidence to date to suggest that anyone has been forced to recuse themselves after someone has raised a conflict of interest. In every case so far, the judge concerned has brought forward their own issues and therefore recused themselves. I am aware of two other cases, one of which involved Sheriff Cowan, who said that her membership of the RSPB might be perceived as a conflict of interest. She put that to both parties in the case, who were given the option to decide whether to allow her to continue in her role or whether she should recuse herself. Ultimately, the defendant in the case asked her to recuse herself.

The process seems to work, and therefore we have no evidence—to date, at least—to suggest that any such bias has been identified in any court case.

The Convener: But how will the parties know that there is a conflict if there is no register of interests? They are not psychic.

Paul Wheelhouse: I take the point. I will take forward these concerns when I meet—for the first time; I have not yet met them—Lord Gill and the new JCR, Gillian Thompson OBE. I will raise the issues in the context of wider discussions and see whether they have any thoughts.

The principle is whether there should be a public register. I note for the record that New Zealand, which was the prompt, if you like, for the matter coming before the Scottish Parliament, has decided to drop the proposal for a public register and instead strengthen its recusal process and complaints procedure. A recusal process and a complaints procedure are already in place in Scotland, and the rules on the complaints procedure are being updated by the Lord President. Those systems are being deployed in New Zealand as well, rather than a public register.

There are concerns about ensuring that there is no undue influence over or harassment of the judiciary as a result of information that they present in a register. In any case, a register could never be completely complete, if I can use that phrase, because it is difficult for a judge to anticipate the full range of cases that might come before them. They could have to declare absolutely everything—every person they know, every organisation they are a member of and every financial interest that they have—yet that might be entirely unnecessary given the case load that comes before them.

The Convener: Exactly the same is true for ministers. You are not expected to declare every single aspect. There is a laid-down procedure for what ministers—and indeed MSPs—have to disclose. No one is asking us to be psychic, but we need to make sure that we follow the rules. If they are good enough for us, why are they not good enough for judges?

Paul Wheelhouse: I take the point entirely. It is entirely appropriate that we declare that information as ministers and MSPs, and, indeed, that MPs do the same. However, we have the opportunity to answer for our actions and get our point across in a way that judges might not be able to—albeit that sometimes it does not feel like that, in terms of the media. As politicians, we can answer for ourselves, and we are usually pretty robust when we do so. It is more difficult for members of the judiciary, and I think that Parliament has to recognise that. They are in a different position and are unable to answer for themselves in the way that we would.

The Convener: I must say that I have not noticed that judges have been slow to come forward in the Sunday Mail recently, but I will leave it there.

David Torrance (Kirkcaldy) (SNP): Good morning, minister. According to the Lord President’s letter to the committee of 21 November, new rules for the judiciary and new guidance are to be published early in 2015. Do you think that they will go some way towards addressing the petitioner’s concerns?

Paul Wheelhouse: That is a very good question—congratulations on being chosen as deputy convener, by the way.

We will have to leave it to the Lord President to provide a detailed response to the issues that were raised by the former JCR and in the most recent annual report. I will look to discuss those issues with Lord Gill when I meet him in due course.

I will bring in Kay McCorquodale to tell you about the detail that we are aware of, but I have every confidence that the Lord President has listened to the criticisms. Moves have already been made to address some of the concerns about the complaints procedure that have been raised by the committee and, importantly, by the former JCR, Moi Ali. Her report raises some concerns about specific cases, and we want to make sure that the complaints procedure addresses all of them. As the minister, I will look to ensure that the procedural weaknesses that have been identified are addressed in due course.

Kay McCorquodale (Scottish Government): Scottish Government officials are in exactly the same position as the minister, in that we have not seen the draft rules. We know that there has been a consultation, and that the JCR fed into it. We anticipate that her concerns will have been addressed. We will meet officials from the Lord President’s private office, and I am sure that they will let us see the rules when they are in a position to share them with us.

John Wilson (Central Scotland) (Ind): Good morning, minister. I welcome you to your new role as the Minister for Community Safety and Legal Affairs.

You have laid out your defence for not having a register. The petition calls for a register to be set up to ensure that the public can have confidence in the judiciary in Scotland. Earlier this year, an article in The Guardian highlighted problems that had been identified in England and Wales to do with who judges the judges.

Are you 100 per cent confident that every judge and every sheriff will recuse themselves when they have an interest that is relevant to the case that they are considering? The petitioner feels that if we do not have on public record information to tell us whether a sheriff or a judge has an interest in the issue that they are considering or in the individual who is before them, that information might come out at a later date and the person who appeared in court might feel that, in the circumstances, they were unfairly treated or unfairly judged.

Paul Wheelhouse: Thank you for your welcome, Mr Wilson.

You raise some highly significant issues. You asked whether I could give a 100 per cent guarantee that every judge will always recuse themselves appropriately. It would be unreasonable for me to say that I can give such a guarantee, just as I cannot be 100 per cent certain that every MSP, every MP and every person in public life, such as celebrities, will always declare their interests. However, I am confident that the system has procedures to address that—or will have, once the reforms to the complaints procedure have been carried out.

Public confidence in the judiciary is extremely important. You hit the nail on the head as far as the rationale for the debate that we are having is concerned. We want to deliver confidence in the judiciary and to ensure that that is maintained. We tried to establish whether any definitive surveys had been carried out on confidence in the judiciary. To date, we have not been able to identify such a survey but, from a personal perspective, I do not have any sense that there is widespread concern about the judiciary or a lack of confidence in the judiciary. There might be disagreements from time to time over the outcome of particular cases, which is entirely understandable, given that there are two parties to a dispute—a defendant and a prosecutor. However, I do not have the impression that there is widespread concern about the judiciary.

How do we ensure that confidence is maintained, and that the ability of the judiciary to be unbiased is never a concern? We need to have a robust system for recusals in place. We are developing that and, at least to my mind, it seems that the judiciary are using the recusal process appropriately.

Do we have a perfect complaints procedure? Apparently not. I recognise the points that the JCR made in her report. I am confident that the Lord President will reflect on those and will reform the process.

Are there sanctions for those who fail to recuse themselves? Yes, there are. If a judicial office-holder breaches the rules and a complaint is made that they should not have taken a particular case, for example, there might be legitimate grounds for an appeal. In such a case, the Lord President may give the judicial office-holder formal advice about what they have done, or a formal warning or reprimand, which would damage their reputation.

Measures are in place to address such situations should they arise, but I recognise the concern about the fact that the recusal process is shrouded in privacy, to some extent, because it happens within the judiciary and is not open to public scrutiny. I will look to discuss with the Lord President and the new JCR, Gillian Thompson, whether they have any suggestions as to how that might be addressed in future.

John Wilson: You are aware, however, that recusal is voluntary. I welcome the Lord President’s submission on the number of recusals, and you have mentioned Sheriff Cowan’s decision to recuse herself from a case that she was hearing on wildlife matters, but the point is that recusal is still voluntary.

A member of the public or someone appearing before the bench may become aware that a sheriff or judge may have a particular interest in an issue after the case and beyond the period of the appeals process, which is very limited—it lasts three months, as I understand it. The information that a judge or sheriff had a particular vested interest in a case that they were hearing may come out 12 months or two years down the road.

How does it give confidence in the judicial system if people feel that the process for complaining about judges is, as you said, shrouded in secrecy? How do we give the public more confidence that they will be dealt with without fear or favour when they appear before a sheriff or judge?

Paul Wheelhouse: I certainly note the points that you have made. There are three possible scenarios when it comes to recusal.

In the first, people voluntarily recuse themselves. They identify themselves as a risk, and they decide for themselves that, because the issue is so significant, they will voluntarily recuse themselves from the case.

The second scenario involves an element of perception. The member of the judiciary concerned might not believe that the issue will materially impact on their decision, but they offer the information to both sides in the case and leave it to them to decide whether the member of the judiciary should recuse themselves. That has happened twice, to my knowledge, so the system has worked.

The third potential scenario is where a judge or sheriff who has an interest that would justify recusal says nothing about it but has to recuse themselves during the court case, when a party raises the matter. We have no record of that happening so far. Further, to date, no information has been provided to me to indicate that a conflict of interest that has not been identified during a court case has been revealed only thereafter. I appreciate that the recusals process is relatively new, and I cannot guarantee that such a scenario has never happened in the past, but the process is up and running now.

Perhaps we have not emphasised this enough, but the oath that the judiciary must take is quite onerous and clear in requiring members of the judiciary to assess potential conflicts of interest under ethical guidance.

The Convener: The big issue that I and my colleagues have been pushing is that it is assumed that those who appear before a judge have some form of psychic powers. How will they know whether there is a conflict? If there is no register, they will not be aware of it.

Until Chic Brodie and I met the Lord President, there was no system for recording recusals. We made that point to the Lord President, and—in fairness—he agreed to put a system in place, but it came into force only in April. It is only since then that we have been able to assess whether judges have recused themselves. Previously, that was a complete mystery; even recusals were a mystery.

You make out that everything is done fairly and is all above board. However, an ordinary person who appears before a judge does not have a clue whether there is any conflict of interest. That is the key point. We want—or rather, the petitioner wants—a system that is similar to the system for other public officials.

Your only real argument is that judges cannot defend themselves. I am sorry, but that is not a very strong argument.

Paul Wheelhouse: If I may say so, convener, you misrepresent what I said. I did not say that that is the only ground for my view. There are serious concerns about potential influence on the judiciary as a result of revealing their interests in a public register. That would open them up to potentially hostile and aggressive press action, which might apply pressure on them to come down in a particular way in an adjudication.

In some cases—as I said—if members of the judiciary reveal property interests or anything that might give away a physical address, that could put them at risk of physical threats. I have experience of that from working with colleagues in the Scottish Environment Protection Agency who have been threatened by those who are involved in criminal activity.

We must be very careful what we wish for. I take on board your points about the need for transparency. People have to know that the judicial service system is fair, above board and unbiased, and it is entirely right that the committee has taken a strong interest in that.

I appeal to the committee to think about the potential consequences of having a public-facing register that could expose members of the judiciary to undue influence from outside the court process and put them or their families at risk. We must recognise that many members of the judiciary deal with extremely sensitive issues, and often extremely violent people, in the context of their work. That is different from the work of politicians.

It is important to recognise that judges would not have the right to defend themselves—I raised that point, and it is fair for the convener to mention it—but I have wider concerns about the risks that such a register would place on the judiciary.

The Convener: I am a bit conscious of the time. I will bring in Kenny MacAskill before coming back to John Wilson but, before we leave that point, I stress that no member of the committee wants to put judges at risk from any security concerns. Ministers and other MSPs do not reveal their home addresses, and we would have a basic procedure that followed that model. I do not want the minister to misrepresent what I suggest. We would obviously have a register that respected the security concerns of judges; to do otherwise would be a very strange policy.

Kenny MacAskill: I will pursue the issue of public interest. One jurisdiction that has a register is the United States. I am going only by apocryphal tales, but I have heard of potential candidates for the Supreme Court being dissuaded, if not rejected, by House committees in which they have been pilloried. The issue is where the balance is struck. Is there any jurisprudential evidence from the United States on whether justice has been enhanced or whether the public opprobrium wreaked on many potential nominees for the Supreme Court has dissuaded people from going into that theatre at all?

Paul Wheelhouse: Mr MacAskill raises an important point. The petitioner, in his submission of 21 October, drew attention to the register of interests in America. The origins of the United States as a country explain to some degree the formal regulation of Government ethics there.

There has been great attention to the issue since the Watergate scandal in the 1970s, and the Ethics in Government Act of 1978 was brought in to require federal judges to file annual financial reports and provide a full financial disclosure to a committee. The purpose is to expose judges’ financial holdings to public scrutiny, which assists them in avoiding conflicts of interest.

A system is in place in the United States. I have seen some of the reporting on particular judges—I will not quote it here—and the kind of details that are posted. Largely, they are on things such as retirement accounts and life insurance policies. I am not sure whether that adds any value, but it opens people up to being pilloried in the way that Mr MacAskill described and to having every aspect of their financial activities pored over in enormous detail.

When people invest in a general insurance policy or a pension fund, they have no day-to-day involvement in the decisions about how that money is invested. I am not sure how relevant such information is to the process. There was one case in Scotland in which a judge had a pecuniary interest, but it was clear that the decision in the case would not have influenced the value of the shareholding, so it was unlikely that the pecuniary interest would have had any influence.

I do not know whether Kay McCorquodale or Catherine Hodgson has any information of the kind that Mr MacAskill asked for about the negative consequences of having a register in the US.

Kay McCorquodale: I do not have any evidence of that to hand. It is interesting that the register there deals only with financial holdings, as Mr Wheelhouse just explained—it does not cover personal interests or anything else, so it is very narrow. In addition, it covers only federal judges; it goes no wider than that.

Anne McTaggart (Glasgow) (Lab): I welcome the panel and I welcome the minister to his new role. There has been discussion about the differences between our role as elected representatives and the role of judges when it comes to declaring information, but will you expand on why you think that judges should not have to declare information, whereas we have to? I am not fully convinced by that argument.

Paul Wheelhouse: I certainly recognise the point, which the convener also made. I do not want to misrepresent his approach. I am sure that his intent is entirely above board; I do not wish to suggest otherwise.

We have concerns on two fronts. First, as MSPs, we disclose our pecuniary interests and any other things that we perceive might give rise to a conflict of interests. A lot of trust is put in us to declare matters that we believe might influence our decision making as MSPs, whether as ministers, committee members or back benchers. We are trusted to do that, and I believe that the Parliament has a good record on that.

If there is any criticism of an entry in the register of members’ interests, we have the ability to defend ourselves. We have the right to do so and we have the forum to do so—in Parliament, we can put things right on the record. I am not a member of the judiciary and I have no axe to grind in this particular fight, other than that I think that there is an issue of fairness, in that judges do not have the same ability to defend themselves in public as we have.

That is not to say that we have no interest in ensuring that everything is above board. I recognise the points that the committee has made. As I indicated, I will look to get feedback from the new JCR, Gillian Thompson, and the Lord President—when I get the chance to meet him—on what they think is necessary to give the public confidence that, although the system is largely hidden from view, it is operating robustly and that those who are perceived to have a conflict of interests in a case raise that and recuse themselves voluntarily or at least make both parties to the case aware that there is a risk of a conflict of interests and give them a choice.

It is extremely important that the system is seen to be properly and robustly applied and that there is no subsequent criticism of the kind that Mr Wilson fairly raised, whereby someone might have been totally unaware of a conflict of interests that the judge who oversaw their case had and it might be too late to do anything about it under the appeals process. We need to get feedback from the Lord President and the new JCR about how that should be dealt with.

Angus MacDonald: Congratulations, minister, on your new portfolio. You have touched on this, but will you expand on the Scottish Government’s argument that the information on a register could be misleading, as it would not cover all the conflicts that could arise? Do you have a view on the argument that, even if a register is incomplete, it could still have value in increasing transparency?

Paul Wheelhouse: If we want to draw people’s attention to something on the register of interests, we can do that at the beginning of a speech. That relates to Anne McTaggart’s point. We can say, “Presiding Officer, I bring to your attention my entry in the register of interests,” and we can flag up any concerns that members should be aware of. We can do that case by case.

If people had to write their entry in a register in advance, it could be difficult to define exactly what should be recorded. If we are dealing with general cases—not specialist cases in a judicial sense—it is difficult to imagine that the register could cover every scenario in which there could be a conflict of interest, every potential plaintiff or defendant who might come forward in a court case, or every interest that might have to be declared.

The register would have to be either entirely comprehensive or targeted. If people have not anticipated that a case might come forward and have not put something on the register of interests, that could be misleading, because it could look as if there was no conflict of interest; something would subsequently have to be added in advance of a case to ensure that everything was clear. I am not sure that it would be easy to operate such a publicly facing register and to ensure that it fully encompassed all potential conflicts of interest that a judge or sheriff could find themselves involved in.

We have heard about the example of such a register in the US but, as Kay McCorquodale said, it covers only the financial aspects of judicial interests. It does not cover personal relationships or memberships of bodies, which might be an issue. A Scottish register would have to be wider than the one in the US to cover all those potential issues, and it would become difficult to manage. At what point would a judge decide that they knew someone well enough to put that on a register of interests? If you meet someone on the bus, do you have to declare as an interest the fact that you had a friendly conversation with them, or is the register for people with whom you have been lifelong friends? That is difficult to define, and I welcome the committee’s views, but I do not see the case as compelling at this point.

Angus MacDonald: I find it strange that, in America, where it is a requirement to register financial interests, judges do not have to register membership of bodies. I was not aware of that.

Paul Wheelhouse: It appears that there is no requirement to register memberships. I find that slightly odd if the intent is to capture all potential conflicts of interest. We have examples in Scotland of people recusing themselves for being members of organisations. In that sense, we are one step ahead of the US.

Sheriff Cowan recently withdrew from a case voluntarily after having raised the issue with both parties to the case. As she had been a member of RSPB Scotland, and as witnesses from the RSPB were going to appear, there was the risk of a perceived conflict of interests, rather than an actual conflict of interests. She gave the parties the option and they asked her to recuse herself. The system worked well in that case.

We have a system that appears to work, but I appreciate the concerns about the need to ensure that it works every time. If one case goes through where it does not work, that is obviously a concern, but we have no evidence to date that that has happened, so let us look at the glass as being half full.

The Convener: I will let John Wilson in again, because I cut him short earlier.

John Wilson: There is an interesting debate on the constitutional issue of the appointment of Supreme Court judges in the United States of America. I am sure that the Judicial Appointments Board for Scotland will look carefully at how judges are appointed to the UK’s Supreme Court and will try to draw on those rules. However, I want to concentrate on the register of interests.

You said in your opening statement that you are aware, because of your experience in your previous ministerial role, that senior officials at SEPA are sometimes stopped and harassed by elements in the community. In your new role as Minister for Community Safety and Legal Affairs, do you intend to introduce legislation to protect public office-holders and their families from being harassed, stalked and approached by people involved in criminal activity? If part of the reason for not having a register is that judges and sheriffs might be stalked and harassed by elements in society, surely we must examine the legislation that protects them from such behaviour.

Paul Wheelhouse: I assure Mr Wilson that, in my previous role, we introduced measures in the Regulatory Reform (Scotland) Act 2014 to protect SEPA officials, which brought their protection into line with that of other key emergency workers.

I take Mr Wilson’s wider point about the judiciary. It would clearly be a criminal offence to do what has been described, but there is a great argument for prevention over cure. Why create a situation where we have to make a new protection for judges when we do not have to put them in that position in the first place? If we can avoid giving away sensitive information that might lead to them being coerced in any way, that will be better than having to resolve the situation after the event by applying legislation, whether old or new.

Mr Wilson makes a fair point, which is that the Government has a duty to protect people in such a situation. I assure him that I will do everything in my power to help to protect members of the judiciary from being threatened. However, it is better to prevent a situation than to have to resolve it.

Kay McCorquodale can give us some guidance on protection.

Kay McCorquodale: As the minister said, this is a serious consideration and we take it into account.

Judicial appointments to the United Kingdom Supreme Court were mentioned. When the Supreme Court was set up, it was decided that it would not be appropriate or feasible for it to have a comprehensive register of interests, because it would be impossible to identify all the interests that might conceivably arise. The court has a formal code of conduct instead. That is similar to our position in Scotland, where we have a statement of judicial ethics.

The Convener: I would like to follow up that point, but I do not want to cut John Wilson off again, so I will let him continue.

John Wilson: Thank you, convener. Minister, you said that you would be wary of having sensitive information put on the public record. Can you define “sensitive information”? Is that just financial information or would it include family relationship information? We could have a judge or a sheriff hearing a case where their son, daughter, mother, father, aunt or uncle was appearing before them to defend or represent someone. Can you define what you mean by sensitive information appearing on a register?

Paul Wheelhouse: I can give examples, but I would need guidance from justice professionals and the police as to what might constitute information that could be risky in terms of modern technology and the ability to attack or damage the interests of individuals. Information on property might be sensitive. The convener made a fair point that personal household information should be kept off any register; that would be sensible if we ever had a register. It would be appropriate to keep residential information private, to protect the safety of the individual and the family and to ensure that it was not a honey pot for those who might want to coerce someone in advance of a decision.

Other sensitive information would be anything else that threatens people’s safety or potentially opens them up to coercion in relation to a court case. We want to protect the integrity of the decision-making process in court, as well as the safety of those making the decisions.

Kay McCorquodale has just pointed out to me that, in the US, the assets, income and liabilities of judges, spouses and dependent children must all be disclosed, although information may be redacted to protect the safety of individuals if they are in danger. That issue has obviously been considered in the US and the approach there might be worth the committee’s consideration.

Kenny MacAskill: It seems to me that it is for those who wish to have a register to define it. What John Wilson said reminded me of a recent high-profile case relating to a football club, in which the judge declared that he was a season ticket holder at another football club. Is it your understanding that that would not constitute a financial interest that he would be required to declare? The judge did not recuse himself but made the information publicly available, which seemed to me the right thing to do.

Do you have any comments on the generality of what would be registered in the proposed register? It seemed to me that the judge in that case was correct to make his declaration. Perhaps the judgment about what to declare should be made with regard to conflict of interest rather than precise rules. Do we expect a judge to declare an interest if he is a season ticket holder at a football or rugby club?

Paul Wheelhouse: Mr MacAskill is absolutely right that we must be reasonable about this. For example, it is left to MSPs to judge what they believe constitutes, or might be perceived to constitute, a conflict of interest and to declare such matters voluntarily, if need be. There is a section in the register of members’ interests where MSPs can voluntarily declare things that might go beyond the minimum requirements, and I am sure that most if not all MSPs use that facility.

I think that we have to rely on the oath and the guidelines for members of the judiciary on what might be, or be perceived as, a conflict of interest and leave it to them to judge what it is appropriate to declare. I commend the example that Mr MacAskill used of the judge making a voluntary declaration so that there could be no perception of conflict of interest, even though that was not strictly required by the terms of the recusals policy.

We have other examples that we should commend of members of the judiciary behaving entirely appropriately by recusing themselves or giving information that would allow others to decide whether they should recuse themselves. I acknowledge and commend the committee’s role in driving forward and achieving a public register of recusals, which is a welcome addition to the process. That register will help to inform those who are involved in court actions of what constitutes a conflict of interest and will refine the process further.

The Convener: Kay McCorquodale spoke about the Supreme Court. You will be well aware that prior to the setting up of the Supreme Court, the Scottish law lords were members of the House of Lords and had to comply with its register of interests. I am not saying that you have suggested that a register of interests is an alien concept for the Scottish legal system—of course it is not, given that generations of Scottish law lords had entries in the House of Lords register of interests. It is not true that the position would be, “Shock horror! We’ll have to fill in a register.” A register is not a new idea, because generations of law lords used a register. It worked well then, so why could it not work for judges and sheriffs now?

Paul Wheelhouse: That is a fair comment. The law lords had to disclose financial interests. Perhaps it is in areas of pecuniary or financial interests that the public could perceive there to be conflicts of interest. For example, if the judge in a damages case had shares in a company that would be affected by the outcome of the case, that would clearly constitute a conflict of interest.

I can understand why financial interests would be declared under the US position and the disclosure rules for the law lords in the House of Lords, but I think that the petitioner seeks something considerably beyond that in asking for full disclosure of information. As I said, some categories of information might put people at risk of intimidation or intrusive press activity, which would be unhelpful for maintaining—

The Convener: For the record, the petitioner is asking for a register of pecuniary interests.

Paul Wheelhouse: Okay. There are certain bounds: we have discussed property assets, and some safeguards would be needed in relation to personal property, as the convener has identified. There are such examples, and I take that point on board. I would have to take such matters to the Lord President and the new Judicial Complaints Reviewer, Gillian Thompson, in order to get their views.

The Convener: I am conscious of time, but it was important to continue that discussion. Does Angus MacDonald have a quick point?

Angus MacDonald: The minister has just covered the point that I was going to raise.

The Convener: We have a high-quality judiciary, and by European—indeed, international—standards it is remarkably free of corruption, so I would not want to see any other view being promoted in that respect.

However, it is important for ordinary men and women who appear before judges that there is an element of transparency. That is what the committee has pursued, and I thank Lord Gill for agreeing to our request for a register of recusals, which was not in place before we raised the matter in April last year.

Paul Wheelhouse: I welcome that too, and I thank you, convener.

Kenny MacAskill: Paul Wheelhouse mentioned that he is due to meet Gillian Thompson, who has previously held the role of Accountant in Bankruptcy and is a senior civil servant. I wonder whether she can bring a fresh pair of eyes to the matter. Are her views known to you, or could they be provided?

Paul Wheelhouse: I am not yet aware of Gillian Thompson’s views on the matter, but I will be seeking them, and I am happy to invite her to relay those views to the committee in due course.

John Wilson: I put on record my thanks to Moi Ali for the evidence that she has given to the committee in the past. I congratulate her on her comprehensive annual report, which was submitted in August and released last week. It makes very interesting reading, and I hope that the minister will, when he meets the Lord President, raise some of the issues that it highlights.

Moi Ali has raised issues about the judicial complaints procedure, and inferred that when a complaint is made against a judge, it disappears into the ether, and that there is no transparency in how those issues are dealt with.

It would be useful to take on board not only the new Judicial Complaints Reviewer’s view on how she will move forward in her role, but the out-going JCR’s experience in the past three years of dealing with the judicial complaints process, in particular with regard to the way in which complaints were dealt with by the Lord President.

I hope that we can move forward and get a system that everybody feels confident will act in the best interests not only of judges, but of the public and everybody involved in the judicial process.

The Convener: I am conscious of time, minister—

Paul Wheelhouse: I will respond briefly to Mr Wilson. I identify with what he said, and I add my own thanks to Moi Ali, albeit that I was not in post when she was the JCR. I welcome her report, and we will discuss the points that it raises with the Lord President and with Gillian Thompson as the new JCR.

We formally received the report only on 23 October, so the time gap is not quite as big as has perhaps been implied.

The Convener: I back up John Wilson’s point. Moi Ali gave excellent and no-holds-barred evidence to the committee, which was refreshing and very useful.

I suggest that we consider the petition again in the new year, when we can reflect on today’s evidence. We need to look in detail at the previous JCR’s annual report, and at the new rules and guidance that I believe will be published by the Lord President early in the new year.

John Wilson: I agree that we should look at the petition again in the new year. I suggest that we tie that in with the release of the information from the Lord President on the new rules, rather than the committee deciding to discuss the issue only to find out that the new rules have not yet been published.

The Convener: Yes, that is sensible.

Kenny MacAskill: It might be useful to hear in due course, either via the minister or directly from the new JCR, what her view is as a fresh pair of eyes.

The Convener: Yes, that is a good point. Do committee members agree that we will do what we have discussed?

Members indicated agreement.

The Convener: I thank the minister and his two colleagues for coming along. Your evidence has been very helpful in enabling us to work out the committee’s next steps, and I appreciate you giving up your time. I suspend the meeting for two minutes to allow for a change of witnesses.

10:54 Meeting suspended.

Scotland’s top judge and Scottish Ministers continue a coordinated opposition the creation of a register of interests. A curious policy for the Scottish Government, considering the First Minister’s words on transparency in other matters. However, a debate in the Scottish Parliament’s main chamber on Thursday 7 October 2014 saw cross party support for the proposal. MSPs overwhelmingly supported motion S4M-11078 - in the name of Public Petitions Convener David Stewart MSP on petition PE1458, urging the Scottish Government to give further consideration to a register of interests for judges.

The parliamentary debate was reported by Diary of Injustice along with video coverage here: TRANSPARENCY TIME: Top judge & Scottish Government told to rethink refusal on declarations of judges as Holyrood MSPs support calls to create a register of judicial interests

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