Monday, October 20, 2014

Scottish Parliament debate on register of Judicial interests: Opening speech of David Stewart MSP, Convener, Public Petitions Committee

Scottish Parliament debate on register of judicial interests. ON Thursday 09 October 2014, the Scottish Parliament’s main chamber held a detailed ninety minute debate on calls to require judges to declare their significant financial and other interests, as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary. At the conclusion of the debate, MSPs unanimously supported the proposal urging the Scottish Government to give further consideration to a register of interests for judges.

The public petition, submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

In a move aimed at widening public awareness of the undisclosed interests of Scotland’s judiciary and details contained in the recent debate by MSPs at Holyrood, each day this week, Diary of Injustice is publishing the official record of the speeches given by individual MSPs who participated in the debate along with video footage.

Today focuses on the opening speech given by David Stewart MSP (Highlands & Islands) (Scottish Labour) who is also the Convener of the Scottish Parliament’s Public Petitions Committee.

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

David Stewart (Highlands and Islands) (Lab):

A few short years ago, the Parliament sent me to Johannesburg in South Africa to address a major conference on the role of public petitions. After I did so, a young American professor took the stage. He told the story of President Kennedy visiting the space agency, NASA. During the tour, the president talked to an elderly cleaner who was washing the canteen floor. The cleaner told him that he had worked for NASA since its inception in 1958 and that his job was to put a man on the moon. The Public Petitions Committee does not aspire to put a man on the moon; rather, it aspires to be a window of the Parliament, to be accessible and to go the extra mile for each and every petitioner.

There is no magic wand, but we acknowledge our successes, including successful petitions on cancer drugs, pain relief and mesh devices. I welcome the opportunity that has been given to the committee to highlight the issues that Peter Cherbi raises in his petition, which seeks a register of interests for Scotland’s judiciary. I thank all the committee’s members and all those who provided evidence.

Mr Cherbi petitioned Parliament seeking the creation of a register of the pecuniary interests of judges bill. His petition was lodged in Parliament at the end of 2012; since then, the committee has been listening to the arguments in favour of and against the proposal. I should say that part of Mr Cherbi’s motivation in introducing the issue was the consideration in New Zealand of a members’ bill by Dr Kennedy Graham of the New Zealand Green Party. I understand that that bill had its origins in the resignation of a former New Zealand Supreme Court judge who was accused of misconduct for allegedly failing to disclose a large debt that he apparently owed to a lawyer who was appearing in a case before him.

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

The petitioner said that the catalyst for his petition was Scottish media investigations into members of the judiciary here. He told the committee that the investigations had revealed a number of criminal charges and convictions. He pointed out that there is now greater public expectation of transparency and accountability across all branches of public life, and that the judiciary has a duty to be accountable to the wider community and should be expected to adhere to the standards that apply to other people in public life, including members of the Scottish Parliament, ministers and members of Parliament.

This Parliament prides itself on being open and accessible. That is a cornerstone of the institution, which was developed by our founding fathers from the work of the Scottish Constitutional Convention. Members of the Public Petitions Committee seek to champion that approach across all areas of public life in Scotland.

I support an independent judiciary, which is a crucial element in the separation of powers between judiciary and legislature. The committee’s motivation in considering the petition was in no way about interfering with judicial independence. Rather, it was about reflecting on whether reasonable modern-day public expectations about transparency are being met.

Prior to the creation of the Supreme Court in 2009, the highest court was the Appellate Committee of the House of Lords. The law lords were bound by the House of Lords disclosure rules, under which financial interests must be declared. There is therefore a precedent in that regard.

For the most part, Scotland and its institutions have a good track record of openness and accessibility. In exercising its scrutiny function, this Parliament has worked to bring about improvements in those areas. However, a good track record is not sufficient reason to say that we should not stop and think about what is done and how it might be improved.

We contacted Dr Graham in New Zealand about his Register of Pecuniary Interests of Judges Bill. He told us that the judiciary in New Zealand is not overly enamoured of the suggestion of a register of interests. I think that that is a fair assessment of the position of the judiciary in Scotland, too. Dr Graham told us that the New Zealand chief justice and president of the Court of Appeal testified before the select committee that was dealing with the bill. As members might be aware, the Public Petitions Committee invited Lord Gill, the head of Scotland’s judiciary, to come to the committee to give evidence. Lord Gill declined to attend a meeting of the committee. That is, of course, his prerogative, but the committee is on record expressing disappointment about not being able to hear from Lord Gill in person at one of its formal meetings. However, the deputy convener, Chic Brodie, and I met Lord Gill informally in Parliament to discuss the petition, and our discussion was useful.

When the committee first sought views on what the petition seeks, we were told by the judiciary and the Scottish Government that the existing safeguards are sufficient. The first of those is the judicial oath that must be taken by all judicial office-holders. In the oath, office-holders swear to

“do right to all manner of people ... without fear or favour, affection or ill will”.

The second safeguard is the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”, which was published in 2010 and updated in 2013. The statement provides guidance for judges and draws attention to areas of potential sensitivity.

The third safeguard to which we were directed is the Judiciary and Courts (Scotland) Act 2008, which contains provisions to regulate and investigate the conduct of judicial office-holders, and contains rules for dealing with complaints about judicial office-holders.

The petitioner has argued that no statistical or analytical information is available that records whether and how frequently declarations of interest are being made. I will come back to that point.

The committee received evidence from Moi Ali, who was at that time the Judicial Complaints Reviewer. The role was created by the Scottish Government, to review the Judicial Office for Scotland’s handling of investigations into members of the judiciary and ensure that complaints had been dealt with fairly. Ms Ali has since moved on; I wish her well in her current and future roles. The written and oral evidence that she provided to the committee was well thought through and thought-provoking.

Ms Ali made it clear that in her role as Judicial Complaints Reviewer she supported what the petition called for. Her view was that a register of interests would increase the transparency of the judiciary and contribute to public confidence in the judiciary’s actions and decisions. She told us:

“Transparency tends to increase trust; conversely, lack of transparency is more likely to create suspicion.”

In many ways, that simple statement goes to heart of the issues that have come up during our consideration of the petition.

In Ms Ali’s view, what is required of the judiciary should not be out of line with what is required of others who hold high public office. She told us that she had dealt with a complaint about a judge who had allegedly used their position to promote a body that was alleged to have breached international law. In another case, she dealt with a complaint about a sheriff who allegedly participated in a social function that had been organised by a lawyer who had appeared before him at an earlier proof hearing. We did not receive any information about complaints received or considered from the judiciary.

A judicial office-holder will recuse him or herself—that is, decline to hear the case—in situations where it is felt that there is a potential conflict of interests. Until recently, there was no published information about when and in what circumstances recusals took place, but after the committee’s interest, I raised the recording of recusals directly with the Lord President. Lord Gill agreed to ensure to ensure that information on recusals is publicly available. Therefore, since April this year, all incidences of recusals and the reasons for them have been published on the judicial website; 14 such incidences have been notified.

The move to make more information available is welcome—for example, in April at Forfar sheriff court, Sheriff Veal personally knew a witness and correctly recused himself—but some feel that that does not go far enough. The published information relates to instances in which a judicial office-holder has recused. What about the instances—no matter how rare—of a judicial office-holder not being willing to recuse, despite having received representation? I am not clear where someone could get that information. Is it recorded? Is it available publicly? If not, is there a reason for its not being available? I understand that the complaints that the Judicial Complaints Reviewer saw were more about failure to recuse than about the lack of information on the recusals that took place.

What recourse does someone have when an allegation of a conflict of interests comes to light after a court case has been heard? If there is no means by which someone is able to check in advance whether there is potential for any conflict of interests, there is likely to be a sense of grievance if something comes to light after a court case has been heard and decided. Could a register of interests avert the need for such complaints by enabling people to make an informed decision to challenge any perception or allegation of conflict of interests at the time, rather than after a case has been decided?

On the other hand, the Lord President is concerned that the introduction of a register of interests could have unintended consequences and that consideration must be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals. Of course, that is right, but would a register of interests increase the risks that judicial office-holders face in that regard?

I hope that I have set out some of the questions on which it would be useful for us to reflect. I understand that the New Zealand bill was ultimately withdrawn on the basis that agreement was reached to improve the rules on recusals and conflicts of interests. I am pleased that agreement was reached there and that the issues were discussed openly. I welcome the opportunity to debate the issues that the petition raises and I look forward to hearing colleagues’ views.

I move, that the Parliament notes Petition PE1458, in the name of Peter Cherbi, on the issue of a register of interests for members of Scotland’s judiciary; welcomes the petitioner’s efforts to highlight what it considers to be an important matter, and commends the issues raised to the Scottish Government for further consideration.

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

Friday, October 17, 2014

LORD NO-FLY: Globetrotting top judge takes control of air miles, tells judiciary to write plea for jet travel after media investigations on overseas junkets

Top judge - I would like to take the jet because … SCOTLAND’S top judge, the Lord President & Lord Justice General Brian Gill has signalled his ire over recent media exposes on his judicial colleagues use of publicly funded overseas jet travel with the issuing of an edict requiring all judges to seek permission from his own office before embarking on future international travel junkets.

The document, finally released in a Freedom of Information request after weeks of delays by the Judicial Office for Scotland, reveals Lord Gill - himself no stranger to the travel circuit after a now-not-so-secret six day state visit to Qatar - is to require his judicial colleagues to write up a short story on why they feel they need to take a taxpayer funded trip abroad instead of carrying judicial duties in Scotland’s overstretched courts.

Costs, numbers of judges attending, an explanation of the wider benefit of the trip to the judicial system and details of what may be learned must feature in any essay now required to be written up by all members of Scotland’s judiciary if they want to fly off into the sunset to law conferences & business meetings – all of which are mostly held at posh venues including golf courses, saunas and gala dress balls, followed by tours around museums, and off the books meetings at the personal haunts of the world’s rich, powerful elite.

The clampdown over overseas trips by Scotland’s judiciary appears to have been sparked after investigations by the Scottish media into the jet set lifestyle of Scotland’s secretive judiciary.

Reports first appearing in the Sunday Mail newspaper during June 2013, and more recently an investigation by the Scottish Sun - which included references to Lord Gill’s state visit to Qatar - sparked concerns Scots judges have lost sight of their station in court, instead appearing to prefer the jet set lifestyle to hearing what some judges refer to as “boring mundane cases” in Scotland’s courts.

From the Lord President: Attendance at conferences and authorisation of overseas travel

I have been reviewing the arrangements to control expenditure to meet attendance at conferences by the judiciary, especially where the conference is taking place outwith the United Kingdom. I have also been considering the arrangements for the authorisation of all other overseas travel to be paid from public funds. With immediate effect the following arrangements are to apply to future requests.

Requests for funding for attendance at conferences and for all other overseas travel should be sought only from the Judicial Office [1] . No request for support to meet attendance at conferences, or other overseas travel should be made to any other part of the Scottish Court Service.

In all cases where funding is being sought I require a business case to be produced by the judicial office holder or the judicial representative body that is seeking funding. The business case does not need to be long, but it must:

(i) identify the nature of the conference;

(ii) the number of judicial office holders it is suggested should attend;

(iii) why that number is necessary if it is more than one;

(iv) the benefit either to those attending or to the judiciary more widely from attendance at the conference;

(v) the likely costs of attendance [2]; and

(vi) the likely impact on the efficient administration of business.

The business case should be sent to the Executive Director of the Judicial Office for Scotland, Stephen Humphreys. He will assess whether funds are available to meet the costs of attendance and if so pass the business case to me.

I will then consider all requests and respond directly to the judicial office holder. I will need a clear justification for any overseas travel. As a general rule it should only be necessary for one judicial office holder to attend a conference overseas. It will only be in exceptional cases that I am likely to consider it necessary for more than one person to attend.

Where support is provided to attend a conference a report is to be prepared and sent to the Executive Director within one month of the end of the conference. The report will be placed on the Judicial Hub and the Judicial website. It is important that as many of the judiciary as possible are able to benefit from the investment of public money in attending the conference.

[1] In respect of attendance at events by Sheriffs, the Sheriffs Association will continue to consider the need for attendance by sheriffs at conferences before preparing the business case and seeking funding. The Association undertakes this activity on behalf of all sheriffs and it considers applications equally from both its members and non-members. If a sheriff wishes to attend a conference he or she should in the first instance contact the Secretary to the Sheriffs' Association. I am grateful to the Association for undertaking this function.

[2] When considering the costs of attendance at a conference, Judicial Office Holders should consult the Judicial Office for an estimate of the likely travel and accommodation costs, if required. Travel and subsistence rules apply to all travel whether inside or outside the UK.

While the clampdown on overseas trips is a welcome move by the Lord President, the Judicial Office for Scotland and Scottish Court Service are currently REFUSING to reveal any details of hundreds of trips taken by Scottish judges around the UK.

When enquiries were made regarding domestic UK destinations of Scottish judges, staff at the Scottish Court Service switched destinations of Scotland’s second most powerful judge – Lord Carloway from Bristol in England, to Dublin in the Republic of Ireland –  in an attempt to avoid having to disclose the information on UK judicial travel via Freedom of Information legislation.

Full details of trips undertaken by Scottish judges were previously published by Diary of Injustice here: Overseas Travel of Scotland’s Judges 2013-2014 & Judicial trips & extra expenses claims 2010-2013

Tuesday, October 14, 2014

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

MSPs voted to support calls for a register to feature judge’s interests. MSPs have unanimously supported a petition urging the Scottish Government to give further consideration to a register of interests for judges – despite Scottish ministers following a ‘scripted’ sick line issued by Scotland’s top judge Lord President & Lord Justice General Brian Gill - who opposes calls for judges to declare their sizeable wealth and hidden links to big business including banks, legal, and other professions.

Last Thursday’s debate in Holyrood’s main chamber, which lasted around 90 minutes saw msps hotly debate proposals for judicial transparency put forward in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The public petition, submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Since January 2013, members of the Petitions Committee have looked at the issues raised in the petition, and have taken evidence from the now former Judicial Complaints Reviewer (JCR) Moi Ali - who supports the petition. During evidence at the Scottish Parliament’s Petitions Committee last September, Moi Ali told msps there was little transparency or accountability in Scotland’s judiciary.

Scottish Parliament debate on Register of Judicial Interests Thursday 9 Oct 2014

Official record of debate. Opening the debate in Holyrood’s main chamber, David Stewart MSP, Convener of the Scottish Parliament’s Public Petitions Committee told fellow MSPs in his opening address that Media investigations into members of the judiciary "revealed a number of criminal charges and convictions".

Speaking in support of the petition, Labour MSP Neil Findlay said: "Is it not an outrage that Lord Gill had such contempt for this Parliament that he refused to attend a particular meeting?"

Angus McDonald MSP, who sits on the Petitions Committee said: "Given the spirit of openness and transparency that we in the Parliament so rightly hold in high regard, it was a clear snub to the committee when Lord Gill refused to appear in public."

John Wilson MSP who is also a member of the Petitions Committee, said: "In the speech Lord Gill gave in Qatar he said a jurisdiction steeped in tradition is slow to react to change.

"He should re-read his own words and give the same speech in Scotland to bring the judicial system up to a standard that we would all like it to hold."

Labour MSP Graeme Pearson said the petition has raised "issues of concern" and suggested the creation of "a register which would not be used by those who would be vexatious to attack or to pursue the judiciary, but at the same time give us confidence that our courts for the future operate to the best outcome".

Conservative deputy leader Jackson Carlaw said he was not persuaded that a register is necessary , but criticised Lord President Brian Gill's refusal to appear before the committee to make his case.

Lord Gill's response gave the impression that he was "part of an Edwardian establishment disdain of the right of the hoi polloi, as he sees it, to have any understanding of these matters, and that there was a swish of judicial ermine and velvet that should cow into deference the public and the legislator in relation to our right to understand the issues", Mr Carlaw said.

David Stewart said Mr Cherbi's petition was inspired by a bill in New Zealand following the resignation of a former Supreme Court judge who was accused of misconduct for "allegedly failing to disclose a large debt he apparently owed to a lawyer appearing in a case before him".

"The judiciary there (in New Zealand) was not overly enamoured at the suggestion of a register of interests," Mr Stewart said.

"I think that is a fair assessment of the position here to say that is probably true as well as far as the judiciary are concerned."

The committee was disappointed at Lord Gill's refusal to meet with them in public, he said.

Mr Stewart added: "The petitioner has said that the catalyst for his petition was investigations by the Scottish media into members of the judiciary here.

"The petitioner told the committee that the media investigations had revealed a number of criminal charges and convictions.

"The petitioner points out that there is a greater public expectation now in terms of transparency and accountability across all branches of public life. And that the judiciary has a duty to be accountable to the wider community and should be expected to adhere to the same standards as those which apply to others in public life, such as MSPs, ministers, and MPs."

Mr Pearson said: "My own approach to these things, and it always has been, is that sometimes even though you lose an element of your own privacy it is better to be upfront in these matters and record these things in a register.

"I understand the threat that may attach to that in terms of the pressure that judges could face in the future and I wonder if there is a way, once we give some thought to it, that we could create a register which would not be used by those who would be vexatious to attack or to pursue the judiciary, but at the same time give us confidence that our courts for the future operate to the best outcome."

Mr Carlaw said: "Amongst my parliamentary colleagues, I should say that, without naming anyone, I have been told quite clearly that “We don't want any of that”.

"But let me say, I think the minister identified quite ably why in fact we should have confidence in the current process, and why I am not persuaded that we do actually need a register of interests."

But he added: "I have to say the response of the Lord President was essentially to say “Get your tanks off my lawn”.

"In briefing I have heard from the Law Society of Scotland that they don't think the Petitions Committee of the parliament is a grand enough committee for the Lord President to have to command his attention.

"I did myself say that it gave the impression that the Lord President was part of an Edwardian establishment disdain of the right of the hoi polloi, as he sees it, to have any understanding of these matters, and that there was a swish of judicial ermine and velvet that should cow into deference the public and the legislator in relation to our right to understand the issues."

He added: "The appropriate way to have done it would have been for the Lord President to come and in a responsible environment place his case on the record, allow us to have tested it and then quite in all likelihood have agreed with the principle that he had articulated and thereby have advocated why we thought that was the right approach.

"We weren't able to do that and that's why we are having the debate today."

But Legal Affairs Minister Roseanna Cunningham followed the line issued by Scotland’s top judge Lord Gill, who has waged a bitter campaign against the transparency proposal for two years.

The minister, almost quoting word for word from a series of “No” letters issued as proclamations by judge Lord Gill, 72, to the Parliament’s Public Petition Committee insisted "the safeguards currently in place are sufficient to ensure the impartiality of the judiciary".

Ms Cunningham said: "The Scottish Government considers that it is not necessary to establish a Register of Judicial Interests. It is our view that the safeguards currently in place are sufficient to ensure the impartiality of the judiciary in Scotland."

In an attempt to justify the Scottish Government’s identical position to that of the Lord President, in opposing the move to make judges declare their interests, the Legal Affairs Minister went on to quote findings from the GRECO report - itself written by judges and members of the legal profession from Europe who also steadfastly oppose any declarations of their significant financial wealth and interests.

Ms Cunningham claimed the GRECO FOURTH EVALUATION ROUND Corruption prevention in respect of members of Parliament, Judges and Prosecutors found "nothing emerged during the current evaluation which could indicate that there is any corruption in relation to judges, nor is there evidence of judicial decisions being influenced in an inappropriate manner".

Given the duration of the debate and detail, video footage of MSPs who spoke during the debate and the official record will be published on Diary of Injustice in separate articles for the benefit of readers and those following the debate on accountability and transparency within Scotland’s judiciary.

The petition will be heard again in late October by the Scottish Parliament’s Public Petitions Committee who will consider their next move.

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, October 11, 2014

THE UNRECUSED: Not one financial recusal for £200K a year wealthy judges in six months leads to suspicion over ‘wigs list’ used by top judge to dodge questions on judicial interests

No recusals on financial grounds for wealthy judiciary. RECUSAL DATA published by Scotland’s top judge for the past six months appears to corroborate claims from within the legal system that high earning members of the judiciary typically on annual salaries of up to £220K a year are refusing to declare significant financial wealth & property holdings which could require judges to recuse themselves from hearing cases in the courts.

In the six months to October, beginning on April 1, Scotland’s top judge Lord President & Lord Justice General Brian Gill undertook to msps who sit on the Scottish Parliament’s Petitions Committee that he would publish recusal data of judges standing aside in court cases after conflicts of interest became clear.

However, a glaring omission in the albeit limited number of fourteen recusals published to-date, show that out of hundreds of cases currently in the courts being heard by wealthy, property owning judges, there is not one recusal by a judge on financial grounds or any wealth linked reason.

Scotland’s judges, from Sheriffs to Senators on the Court of Session earn salaries of up to £220K a year accompanied by up to £1million pound pension pots, high value shareholding portfolios, earnings links to big business, banks & law firms and multi million pound property portfolios, yet not one judge has declared a financial interest, not even a declaration of using the same High Street bank that a litigant or even a law firm may well be suing in court.

Today, the figures currently published by the Judiciary of Scotland have been described by a solicitor as “Make believe written up during a lunch hour.”

He said “There are no references to the cases in question where the recusal allegedly took place, no reference of the subject matter of the case, no identification of legal agents or litigants, and the reasons listed for a recusal are at best, vague, bordering on dishonesty in at least one case I have been made aware of.”

He continued: “Is the Lord President operating a don’t ask don’t tell policy on recusals? Without specifics or accurate references to the cases in question, the data has little value to members of the public who have the right to know.”

The deal to publish recusal data was only arrived at earlier this year, after months of wrangling between Scotland’s top judge and the Scottish Parliament over a proposal to create a register of interests for Scotland's judiciary as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

Lord Gill previously ignored several requests from msps to provide the Petitions Committee with historical recusal data - to enable a more independent analysis of the information to understand if in fact judges were actually recusing themselves at all.

Gill was eventually forced to admit no information on recusals had ever been recorded in Scotland’s courts up to this year.

Now, six months on from the beginning of publication of recusal data, a slightly clearer picture is beginning to emerge of how Scotland’s judges treat conflicts of interest in court cases. Simply, they don’t.

And when a recusal issue is raised, it has been reported some judges have become angry, expressing an underlying hostility to litigants and solicitors who raise matters for recusal.

Members of Scotland’s judiciary, from justices of the peace – who are currently, conveniently excluded from the recusal list, right up to Senators of the Court of Session who are required to recuse, often regard conflicts of interest as a non-issue. They act as judge in their own cause, and routinely dismiss any suggestion an interest put to them could influence their decision or position in a case they are currently hearing.

Notable recusals currently published include Scotland's top judge himself – the Lord President Lord Brian Gill who was forced to recuse himself from court after his own son appeared before him in a case which the Scottish Court Service refuse to identify.

Top judge Lord Gill stepped aside from case due to son’s involvement. SCOTLAND’S top judge, the Lord President Lord Brian Gill was forced to stand aside from hearing an unidentified case in the Court of Session because “a relative” - who turned out to be one of Lord Gill’s sons, represented a party involved in the court case.

However, the first ever recoded recusal of the country’s top judge published by the Judiciary of Scotland vaguely described Lord Gill’s withdrawal from the case as due to a “Relative of Senator acts for the respondent” - whereas the “relative” turned out to be the Lord President’s son, advocate Brian Gill.

Initially, the Judicial Office refused to confirm the identity of Lord Gill’s “relative”. A spokesperson for the Judicial Office then stated: “We cannot provide any comment or further details in addition to what has already been published, but we can confirm that the advocate is one of the Lord President’s sons.”

Judicial Recusals - April to August 2014 :

24 March 2014 Livingston Sheriff Court Sheriff Edington (Civil) Court report prepared by spouse of a resident sheriff.
8 April 2014 Forfar Sheriff Court Sheriff Veal (Criminal) Sheriff personally known to a witness.
10 April 2014 Selkirk Sheriff Court Sheriff Paterson (Civil) Sheriff had previously acted for a client in dispute against Pursuer.
23 April 2014 High Court Lady Wise (Criminal) Senator had previously acted for a relative of accused.
16 April 2014 Glasgow Sheriff Court Sheriff Cathcart (Criminal) Sheriff personally known to a witness.
13 May 2014 Haddington Sheriff Court Sheriff Braid (Civil) Known to pursuer's family.
14 May 2014 High Court Judge MacIver Criminal (appeal) Conflict of Interest.
20 May 2014 Court of Session Lord Matthews (Civil) Senator personally known to a witness.
19 June 2014 Dingwall Sheriff Court Sheriff McPartlin (Criminal) Sheriff presided over a trial involving the accused, where the issue to which the new case relates was spoken to by a witness.
20 June 2014 Elgin Sheriff Court Sheriff Raeburn QC (Criminal) Accused appeared before Sheriff as a witness in recent trial relating to same incident.
24 June 2014 Glasgow Sheriff Court Sheriff Crozier (Criminal) Sheriff personally known to proprietor of premises libelled in the charge.
26 June 2014 Court of Session Lord President (Civil) Relative of Senator acts for the respondent.
27 August 2014 Court of Session Lord Brailsford (Civil) Senator personally known to husband of the pursuer.
28 August 2014 Oban Sheriff Court Sheriff Small (Civil & Criminal) Sheriff personally known to a party.

Thursday, October 09, 2014

Judges should not be above scrutiny: Scottish Parliament MSPs to debate petition calling for a Register of Interests for Scotland’s judiciary

MSPs to debate proposal for judges to declare interests MSPs in the Scottish Parliament’s main chamber will, today, Thursday 9 October  debate a proposal to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The public petition, submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Since January 2013, members of the Petitions Committee have looked at the issues raised in the petition, and have taken evidence from the now former Judicial Complaints Reviewer (JCR) Moi Ali, who told msps last year there was little transparency or accountability in Scotland’s judiciary.

Moi Ali’s evidence session with MSPs was published in an earlier article along with video footage 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

Moi Ali also supports the proposal to create a register of judicial interests.

To-date, the only opposition to the proposal has come from Scotland’s top judge - Lord President & Lord Justice General Brian Gill.

And, even though the 72 year old top judge who recently enjoyed a 6 day State Visit to Qatar - declares ‘some’ of his assets in a small scale register of interests published in an earlier article here: Scotland's Judicial Rich List, Lord Gill remains adamant he will not create a register of interests for all members of the Scottish judiciary.

While the Scottish Government does not currently support the need for a register of interests, Ministers have said in letters to the Petitions Committee it is up to the Lord President to create a register on his own if he wishes.

However, Lord Gill - who earns £218,470 a year and has already declared a list of investments, directorships and links to companies, has aggressively lashed out at the media, litigants, court users and members of the public, over the call for further transparency. The top judge also refused several invitations to show up at the Scottish Parliament and face questions from MSPs.

Potentially, the debate today in the Scottish Parliament could lead to MSPs agreeing in the future that legal changes should be made to compel judges to reveal their interests.

The key issue for the Committee is whether there is a reasonable public expectation that Scotland’s judges are transparent in their dealings and their interests.

They may ask the question: If MSPs and Members of other Parliaments are required to reveal their interests, then why not Scotland’s judges? Currently, judges in Scotland (and England) are not obliged to reveal their interests.

In considering the petition, the Public Petitions Committee called Lord Gill, Lord President and Lord Justice General and Scotland's longest serving judge, to give evidence to the Committee. Lord Gill opted not attend the Committee. Lord Gill is perfectly within his rights to do this, and a Parliamentary Committee cannot compel a judge to give evidence.

The Parliamentary debate will ‘note the content of the petition’.  It will be led by the Committee’s Convener, David Stewart MSP and closed by Chic Brodie MSP, the Deputy Convener. Roseanna Cunningham, Minister for Community Safety and Legal Affairs is likely to respond, as are backbenchers and members of the Parliamentary Justice Committee. 

David Stewart MSP and convener of the Scottish Parliament’s Public Petitions Committee (PPC) commented: “The Public Petitions Committee is a direct link between the public and the Scottish Parliament. It is the job of the PPC to shine a light into different corners of public life in Scotland. This can mean taking on the establishment on behalf of the petitioner, even where this may cause significant discomfort for elements of that establishment.

“The key issue for the Committee is whether there is a reasonable public expectation that our judges are transparent in their dealings and their interests. If MSPs and Members of other Parliaments are required to reveal their interests, then why not Scotland’s judges? The Committee believes it is crucial we activate the first parliamentary debate on this important topic on behalf of the petitioner.”

Describing the work of the Public Petitions Committee, David Stewart MSP continued: “Petitions to the Parliament are a direct way for individuals, community groups and organisations to raise issues with Parliament. To date we have received more than one-thousand, five-hundred petitions, calling for action on a very broad range of topics. Petitions have resulted in a wide range of actions, including parliamentary debate, changes to law and policy direction and even official government apologies for past wrongs.

“The Committee is at its best when it kick-starts positive change in Scotland, and many petitions are successful. Petitions from the public have been a crucial factor in bringing about better access to cancer drugs and improving school bus safety.  A petition calling for stronger NHS support for chronic pain sufferers led to the Government’s announcement of a new Centre for Chronic Pain earlier this year, while a petition highlighting the devastating impact on women’s health of polypropylene mesh medical devices led to their suspension.

“One of the things I am proudest of as Convener of the Committee is that, unlike the system in place at Westminster, each and every petition lodged on the Scottish Parliament’s petitions system is considered by the Committee at a formal Committee meeting. The PPC consists of seven MSPs from all the main parties. Although we may have our political differences, we wholeheartedly agree that we want many more people, passionate about campaigning for positive change to submit a petition directly to the Scottish Parliament.”

SCOTLAND’S ANTI TRANSPARENCY TOP JUDGE :

Scotland’s top judge Lord President Lord Brian Gill fiercely opposes calls for any form of transparency & public accountability of the judiciary and Scotland’s Courts.

Over the course of nearly two years, Scotland’s top judge Lord Gill has focussed his anger on a Scottish Parliament investigation into calls for a register of judicial interests. The register proposal would reveal the judiciary's vast personal, undeclared wealth, extensive family and business connections throughout the legal profession, links to big business, offshore trusts & investments, ownership of numerous and high value properties through a variety of ‘creative’ arrangements, directorships, shareholdings, and even unpublished criminal records of members of the judiciary.

Lord Gill refused three invitations to appear before the Scottish Parliament to give evidence and face questions on his opposition to the proposal to create a register of judicial interests. The top judge has also used the Scotland Act as a loophole to avoid further scrutiny on the matter.

Lord Gill’s challenge to MSPs declared judicial opposition to transparency. In Lord Gill’s opening letter to MSPs on the call for a register of judicial interests, the judge claimed “In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.”

In what was a hint of the sheer hostility felt by the judiciary against a call to bring transparency to judges interests, Lord Gill went onto accuse the media, press, litigants, court users and just about everyone else with an interest in transparency of being potentially hostile and aggressive, simply because someone may wish to raise questions of judges interests similar to the same kinds of questions which are raised of interests in other public officials and those in public life, politics & government.

And, if MSPs were unsure of the depth of Lord Gill’s attitude towards transparency, the top judge went on to refuse to appear before the Scottish Parliament, and used a loophole in the Scotland Act to justify his sweeping declaration he did not require to answer questions from Scotland’s democratically elected politicians.

Lord Gill’s use of Scotland Act against MSPs was reported in the media. Writing in a letter to msps, Lord Gill implied cooperation with Parliament would be withdrawn over calls to make judges more transparent in register : “Section 23(7) of the Scotland Act provides inter alia that the Parliament may not require a judge to attend its proceedings for the purposes of giving evidence. This is not a loophole. It is a necessary part of the constitutional settlement by which the Parliament is established. Its purpose is to protect the independence of the judiciary, a vital constitutional principle that is declared in section 1 of the Judiciary and Courts (Scotland) Act 2008”

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

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

Monday, October 06, 2014

INTERESTS GO TO HOLYROOD: MSPs gear up for Scottish Parliament main chamber debate on creating a Register of Judicial Interests for Scotland's wealthy, well connected judicial elite

MSPs will debate transparency call for register of judicial interests. ON THURSDAY of this week, the Scottish Parliament’s main chamber will host a debate on proposals to create a register of interests for members of Scotland’s judiciary, as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

Members of the Scottish Parliament’s Public Petitions Committee secured the debate, to be held this Thursday, 9 October 2014 after hearing evidence and debating proposals backed by the media and transparency campaigners calling for all members of Scotland’s judiciary to be subject to a full and publicly available register of judicial interests.

The proposal envisages creating a single independently regulated publicly available source containing current information on judges backgrounds, their positions on personal wealth, so-far undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information which is routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Petition PE1458 has been debated across several meetings at the Scottish Parliament’s Public Petitions Committee since early last year. In response to queries from MSPs on the lack of declarations of judicial interests, members of the Petitions Committee received numerous letters from Scotland’s top judge Lord President Lord Brian Gill - who has steadfastly refused the call for greater transparency to be applied to the judiciary in the creation of a register of interests as called for in the petition.

In response to invitations to attend the Scottish Parliament, Lord Gill has each time, refused to answer questions from MSPs on how the current system of oaths and rules regarding recusals operates.

The petition has also received submissions from other interests in the legal system including the Law Society of Scotland, the Crown Office, the Scottish Court Service, the Scottish Government, the Judicial Appointments Board, the Judicial Complaints Reviewer and a Member of the New Zealand Parliament who is also involved in creating a register of interests for judicial figures in New Zealand.

Individuals who had their lives seriously impacted by the lack of judicial transparency including now widely reported failures of judges failing to recuse themselves and failures to declare interests have also contributed to the petition.

A key evidence session on the petition took place in September 2013, attended by Scotland’s Judicial Complaints Reviewer who appeared before the full Petitions Committee to answer questions on the remit of her office. The JCR also supports Petition 1458, as reported previously 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

During a Petitions Committee meeting earlier this year, members of the Committee heard an account of a controversial private meeting held at the Parliament itself with Lord Brian Gill which excluded all but two members of the Petitions Committee. The release of notes of the private meeting revealed that Stephen Humphreys, the Executive Director of the Judicial Office for Scotland also attended the “unofficial meeting”, reported here: Judicial Transparency is “not workable” claims Scotland’s top judge Brian Gill in private meeting with Holyrood msps on register of judicial interests petition

Petition PE1458, which has been opposed by the vested interests of the judiciary itself and other anti-transparency figures in the justice system, is due to be heard again at the Petitions Committee after a fourth letter from Scotland’s top judge is received by the Public Petitions Committee. However, three weeks on from the private meeting between msps, Lord Gill and the Director of the Judicial Office, no such letter from the Lord President has been made publicly available.

A recap of video footage of previous Petitions Committee hearings on Petition PE1458:

Petition PE1458 Register of Interests for Scotland's Judiciary Scottish Parliament 6 May 2014

6 May 2014: The Committee agreed to write to the Lord President and the Scottish Government. Link to Official Report 6 May 2014 (434KB pdf)

Petition 1458 Register of Interests for Scotland's Judiciary Scottish Parliament 4 March 2014

4 March 2014: The Committee agreed to seek time in the Chamber for a debate on the petition. The Committee also agreed to write to the Lord President and the Scottish Government. Link to Official Report 4 March 2014 (403KB pdf)

Petition 1458 Register of Interests for Scotland’s Judiciary 28th January 2014 Scottish Parliament

28 January 2014: The Committee agreed to defer consideration of the petition pending receipt of a letter from the Lord President. Link to Official Report 28 January 2014 (547KB pdf)

26 November 2013: The Committee agreed to defer future consideration of the petition until after the meeting between the Convener, Deputy Convener and the Lord President. Link to Official Report 26 November 2013 (515KB pdf)

Judicial Complaints Reviewer Moi Ali evidence session Petition PE1458 Register of Interests for Scotland's Judiciary Scottish Parliament

17 September 2013: The Committee took evidence from Moi Ali, Judicial Complaints Reviewer. The Committee agreed to write to Dr Kennedy Graham MP, New Zealand Parliament, the Crown Office and Procurator Fiscal Service, the Scottish Court Service and the Scottish Government. The Committee also agreed to consider the debate that took place during the passage of the Scotland Act 1998 on section 23. Link to Official Report 17 September 2013 (597KB pdf)

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

25 June 2013: The Committee agreed to invite the Judicial Complaints Reviewer to give evidence at a future meeting. The Committee also agreed to write to Dr Kennedy Graham MP, New Zealand Parliament. Link to Official Report 25 June 2013 (499KB pdf)

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

16 April 2013: The Committee agreed to write again to the Lord President and seek views from the Judicial Appointments Board for Scotland and the Judicial Complaints Reviewer. Link to Official Report 16 April 2013 (472KB pdf) Letter from the Convener to the Lord President of 18 April 2013 (56KB pdf)

Petition PE1458 Register of Interests for Scotland’s Judiciary 5 March 2013 Scottish Parliament

5 March 2013: The Committee agreed to invite the Lord President to give evidence at a future meeting and seek further information on the proposed New Zealand legislation. Link to Official Report 5 March 2013 (361KB pdf)

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

8 January 2013: The Committee agreed to write to the Scottish Government, the Lord President, the Faculty of Advocates and the Law Society of Scotland. Link to Official Report 8 January 2013 (474KB pdf)

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

Friday, October 03, 2014

STOP SECRETS: Scottish Court Service staff switched travel destinations of Lord Justice Clerk from UK to Ireland in bid to avoid Freedom of Information row

Court staff switched details of Lord Carloway visit  AN INVESTIGATION by the Scottish Information Commissioner into false & misleading data released by the Scottish Court Service has received evidence court officials hurriedly switched the travel destinations of Scotland’s second most powerful judge – the Lord Justice Clerk Lord Carloway, after journalists queried an FOI disclosure, asking for further details of a journey.

The switch of Lord Carloway’s destination during a trip taken in March 2014 – from Bristol - a city within the UK, to Dublin – capital of the Republic of Ireland, only came about after court staff realised they had previously claimed to journalists, and more recently to the Scottish Information Commissioner, the SCS did not hold data on judges trips inside the UK.

Staff at the Scottish Court Service maintained that to find the information on UK only travel – for the past year, the work would cost over £600, arguing the SCS were therefore under no obligation to disclose the data which included destinations and costs of the taxpayer funded trips of judges around Scotland and the rest of the UK.

Lord Justice Clerk Lord Carloway, the deputy head of Scotland’s justice system - who earns £207,730 a year, was listed in papers released by the Scottish Court Service: Overseas Travel of Scotland’s Judges 2013-2014 as having taken three taxpayer funded trips in the past year – a six day trip to Vancouver, Canada costing £5,820.16, a two day trip to Dijon, France, with a claimed cost of £59.15 and a two day trip initially listed as Evidence & Procedure Review Study Visit costing £232.93.

The Scottish Court Service was then contacted by journalists who asked officials to provide a destination of Lord Carloway’s Evidence & Procedure Review Study Visit. In response, a senior SCS official said “Lord Carloway attended the event in Bristol.”

When journalists again contacted the Scottish Court Service asking why one domestic UK trip had seemingly been disclosed when court officials claimed it was too expensive to publish the UK only trips, the same official replied “I queried this with the Judicial Office for Scotland who have asked me to pass on their apologies.  Lord Carloway actually attended the event in Dublin and not in Bristol.  It appears to be a miss-communication on their part.”

The Judicial Office for Scotland also became involved in attempts to set the FOI record straight, however an email from the Judicial Office concluded “we have checked the information that we provided and we have nothing further to add.”

Lord Carloway’s travels and the journeys of other Scottish judges including a State visit by Scotland’s top judge - Lord Gill - to Qatar, were featured in papers disclosed by the SCS and published here : LORD JET SET: Scotland’s top judge Lord Gill takes 5 day STATE VISIT to Qatar as investigation reveals judiciary's international travel junkets spree.

Judicial Air Miles at taxpayers expense. Curiously, a further five trips to destinations in the Republic of Ireland - undertaken by Lord Brailsford, Sheriff Wendy Anne Sheehan, Sheriff Frank Crowe, Sheriff Nicola Stewart, and Sheriff Thomas McCartney to the Four Jurisdictions Family Lawyers Conference, also had no destination listed in the papers published by the Scottish Court Service in response to the FOI request.

The family law conference - where the group of judges stayed for several days took place at luxury Carton House hotel and spa in Co Kildare where the itinerary included a black tie gala dinner and optional round of golf on the hotel's course.

Now, it can be revealed the misleading information provided by the Scottish Court Service on Lord Carloway’s trip along with other erroneous claims relating to judges trips, has been under investigation since early August by officials based at the Scottish Information Commissioner’s office in St Andrews, Fife.

A submission provided by a journalist to SIC officials investigating the case states: “The feeling I am left with, as any reasonable person would be left with, is that the SCS tried to conceal information which rightly should be disclosed under FOI or in any case, should be in the public domain so members of the public can see for themselves the significant expenditures of public funds on members of the judiciary who travel round the UK and the world.

Information is already published on judicial travel & expenses claims on the Judiciary of Scotland’s website, it cannot be much of an effort to add the actual destination to what is already published so why the refusal to hand over the judiciary's UK travel information.

The effort the SCS has expended on this matter, together with arguments against disclosure, errors, correcting them etc could well have been put to better use by being honest in the first place and disclosing the information sought on what is after all, a small judiciary with a limited number of courts and duties. After all, the SCS with their huge annual budget, have also just spent about £60 million on repairing the Court of Session & Parliament House – and they cant even get an FOI right or accurate details on the travels of their top judges ?”

Speaking to Diary of Injustice this morning, a legal insider said: “The conduct of those involved appears to indicate the destinations to Ireland were deliberately withheld by the Scottish Court Service or the Judicial Office because of the proximity of Ireland to the United Kingdom. It would not be unreasonable to expect disclosure of UK travel destinations given the SCS already collects data of judicial trips to Ireland.”

A decision in the investigation is expected to be published in due course by the Scottish Information Commissioner, Rosemary Agnew.

PROFILE: LORD CARLOWAY

Lord Carloway was appointed a Judge in February 2000 and was appointed to the Second Division of the Inner House in August 2008. He is a graduate of Edinburgh University (LLB Hons) and was admitted to the Faculty of Advocates in 1977. He served as an Advocate Depute from 1986 to 1989 and was appointed Queen’s Counsel in 1990. From 1994 until his appointment as a Judge he was Treasurer of the Faculty of Advocates.

He is an assistant editor of ‘Green’s Litigation Styles’ and contributed the chapters on ‘Court of Session Practice’ to the Stair Memorial Encyclopaedia and ‘Expenses’ in Court of Session Practice. Lord Carloway was the joint editor of ‘Parliament House Portraits: the Art Collection of the Faculty of Advocates’ and is a former president of the Scottish Arts Club.

In response to the case of Cadder v HM Advocate and its implications in Scotland, Justice Secretary Kenny MacAskill appointed Lord Carloway to undertake a now widely known review of Corroboration - a long held safeguard against miscarriage of justice in Scots law where evidence in a criminal trial is required from two separate sources for a conviction.

Justice Secretary Kenny MacAskill and the Scottish Government had embarked on a policy to abolish the safeguard from Scots law in an effort to ensure the Crown Office obtained more convictions – even when the evidence was not there or sloppy casework by prosecutors ended up in failed criminal trials.

Lord Carloway’s report agreed with Mr MacAskill & Crown Office campaigners that corroboration should be removed, however all other remaining judges including Scotland’s top judge the Lord President Lord Gill rightly opposed the removal of corroboration. The full Carloway Review can be read online here: Carloway Review Report & Recommendations 2011 along with the Executive Summary and Lord Carloway's statement