Tuesday, May 26, 2015

TRIBUTE TO A TRIBUNE: As Lord Gill stands down, courts salute career of top judge who used Scotland Act loophole against Holyrood over calls to declare judicial interests

Top judge who resisted transparency praised for long career. FAREWELL tributes have been paid in court today to Scotland's top judge, Lord President Lord Brian Gill as he retires after serving three years as Lord Justice General, accumulating some 21 years on the bench.

Brian Gill – now aged 73, was Lord Justice Clerk from 2001 until 2012 when he was appointed Lord President after the retirement of Lord Hamilton.

At a ceremony earlier today in the First Division courtroom in Parliament House, a full bench of judges heard Lord Carloway, the Lord Justice Clerk, say that Lord Gill's legal career had spanned half a century and "his distinguished path from passing advocate in 1967 to Lord President is a matter of record if not legend".

Lord Carloway added: "We will all miss his leadership and his friendship on and off the bench. He will be a great loss to Parliament House. However, on behalf of the bench and staff, we all wish him well in retirement, knowing he has a life beyond the law."

Gill had a vision of an inclusive approach, along with a deep concern for the common man and woman, said Lord Carloway - who only a few weeks ago gave a speech accusing lawyers of derailing his own plan to abolish corroboration – a safeguard in Scots law where evidence must be corroborated by two independent sources.

Speaking at a conference of Commonwealth Law Reform Agencies in Edinburgh, Lord Carloway said that his proposals to abolish corroboration has been met with “real hostility” from some lawyers.

Lord Carloway said: “Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest.”

As it turns out, Lord Gill, along with just about every other member of the judiciary opposed the removal of corroboration. In November 2013, Lord Gill gave testimony to the Scottish Parliament’s Justice Committee who were considering the abolishment of corroboration.

Subsequently, the Justice Committee voted against abolishment of corroboration and the politically motivated plan to abolish it – led by the Crown Office, Police Scotland and the now sacked Justice Secretary Kenny MacAskill - was thankfully abandoned.

James Wolffe QC, Dean of Faculty, praised Lord Gill's commitment to Scotland's outward-looking legal heritage.

Wolffe – who’s wife is Court of Session judge Lady Sarah Wolffe – referred to court reports of the past 20 years as "filled with your judgments, expounding and applying the law in your characteristically lapidary prose".

Mr Wolffe - who heads the Faculty of Advocates – the governing body for advocates recently revealed to have plundered the land titles to Parliament House - added: "Your presidency of this court has been characterised by a major campaign of civil justice reform... it aims to effect nothing less than a transformation in the way that we secure civil justice in this country in the 21st century."

Referring to music - another of Lord Gill's great passions, Wolffe recalled that he had written an anthem, "Populus Sion", for the Faculty of Advocates Choir which was performed by the choir, under his direction, in the Basilica of St Peter in Rome in 2006.

Wolffe added: "I speak on behalf of the Faculty, as its Dean, in expressing the hope that, as the law releases its claims upon you, as you lay aside the burdens of office, you will find great enjoyment doing the things about which you care and spending time with the people whom you love"

Alistair Morris, President of the Law Society of Scotland, hailed Lord Gill as one of the most distinguished, pragmatic and reforming holders of the offices of Lord Justice Clerk and Lord President.

Morris, who recently wrote in the media about a rigged Law Society poll claiming lawyers were well regarded - said Gill had brought great judgment to the posts, and, importantly, "Glaswegian wit and good humour."

Lord Gill, who devised the sweeping, now sadly watered down reforms to the civil courts as authored in his Scottish Civil Courts Review - thanked everyone for their kind words, which "mean more to me than I can say".

He said he had enjoyed two great privileges in his career.

The first was to be admitted to the Faculty of Advocates, through which he had the good fortune to make a living doing what he loved, and to make "many and lasting friendships through the camaraderie of the bar".

The second was to have been appointed to the bench, and over 20 years he had been learning all the time from his colleagues and from the gifted pleaders who appeared in his court.

Gill said: "To have been Lord President has been an honour. I have tried to live up to the responsibilities of the job in a fitting way... to enhance the reputation of the court... and to make the work of my colleagues more congenial and fulfilling.I leave office with only the happiest of memories of my time as a pleader and my time as a judge."

On the thorny issue of judicial declarations, legal insiders outside court praised Gill for his input on a proposal calling for judges to declare their secretive wealth, connections and links to big business.

For the past two years, Lord Gill fought a very public and bitter battle with the Scottish Parliament concerning MSPs investigations of transparency and accountability in the Scottish judiciary, amid plans to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary

The proposals to create a register of judicial interests 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.

Gill refused three invitations to appear before MSPs to give evidence on his intense opposition to a register requiring judges to declare their significant wealth and links to big business.

Faced with a no-show of Scotland’s top judge, members of the Scottish Parliament’s Public Petitions Committee took evidence from Scotland’s first Judicial Complaints Reviewer (JCR) Moi Ali. During questions at the Scottish Parliament’s Petitions Committee, Moi Ali told msps there was little transparency or accountability in Scotland’s judiciary.

At the conclusion of a debate at the Scottish Parliament in October 2014, msps overwhelmingly backed a motion urging the Scottish Government to create a register of judicial interests – reported along with video footage & the official record, here: Debating the Judges

Of Gill’s policy against judicial transparency, one legal insider said: “The public required to see first hand the reaction from the judiciary when they were asked to declare their interests. Lord Gill fulfilled this role perfectly and himself made the case for increased transparency and accountability of judges.”

In response to calls from MSPs to attend the Scottish Parliament, the top judge fired off a barrage of angry letters and refused at least three invitations to face MSPs in public and face questions on his hostility to judicial transparency. The saga led to Gill receiving the nickname Lord No-No.

At a recent hearing of the Scottish Parliament’s Public Petitions Committee, one MSP said Gill had protected vested interests of the judiciary during a two year probe on judicial transparency & accountability.

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

Wednesday, May 20, 2015

YOU RAN, M’LORD: Departing top judge gets a wigging for protecting vested interests as Holryood MSPs call in Judicial Complaints Reviewer on register of interests for judges probe

Holryood probe on judicial transparency hits out at top judge MSPs who sit on the Scottish Parliament’s Public Petitions Committee have resisted calls by First Minister Nicola Sturgeon and Scotland’s outgoing top judge Lord President Lord Brian Gill to close down a long running investigation of transparency and accountability within Scotland’s mega rich, mega powerful & secretive judiciary.

In the latest hearing of a proposal to create a register of interests for judges as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary, members of Holyrood’s Public Petitions Committee instead criticised the 73 year old top judge for protecting vested interests.

Commenting on Lord Gill’s opposition to judicial transparency, MSP Jackson Carlaw said:  “I understand that the Lord President is due to retire in due course, and we will wish him well. He will leave knowing that he has managed to protect all the vested interests that he has so assiduously sought to represent in the conduct of this petition.”

Mr Carlaw also suggested there could be “more enlightened engagement with the Lord President’s successor”.

The proposals to create a register of judicial interests 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.

At the meeting, held last Tuesday, the Petitions Committee considered the latest evidence including an intervention by the First Minister, letters from Lord Gill, the petitioner and Gillian Thompson - the Judicial Complaints Reviewer.

Concluding the brief debate, members of the Petitions Committee decided to invite Gillian Thompson, Scotland’s current Judicial Complaints Reviewer (JCR) to give evidence on the long running probe on judicial interests.

The consideration of Petition PE1458 at last Tuesday’s Public Petitions Committee hearing:

Petition 1458 Register of interests for Scotland's Judiciary Scottish Parliament 12th May 2015

Judiciary (Register of Interests) (PE1458)

The Convener (John Pentland MSP, Scottish Labour): The next petition is PE1458, by Peter Cherbi, on a register of interests for members of the Scottish judiciary. Members have a note by the clerk and the submissions. I invite contributions from members.

Kenny MacAskill MSP (SNP): I think that it would be appropriate to hear from Gillian Thompson, the new Judicial Complaints Reviewer. She is a fresh pair of eyes and asking for her reflections in her new role may give us some insight.

The Convener (John Pentland MSP, Scottish Labour): Does everybody agree with that? Are there any other comments?

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

The Convener (John Pentland MSP, Scottish Labour): As many people do, I recognise that the existing safeguards are robust, but are they sufficient? The problem is that the public cannot see that they are robust, even though that may well be the case. I think that inviting Gillian Thompson in to give evidence would be appropriate. Do members agree to take the action proposed?

Members indicated agreement.

Previously, Lord Gill refused several invitations to appear at the Public Petitions Committee to account for his opposition to creating a register of judicial interests.

The top judge sent a series of angry letters to msps, declaring there would be no judicial transparency or a register of interests during his term as Lord President.

In a bid to dodge attending an evidence session at Holyrood to face questions in public from msps, Lord Gill angrily claimed a loophole in the Scotland Act prevented msps from compelling a judge to attend a Holyrood Committee.

Lord Brian Gill, Scotland’s longest serving judge went on to fight a bitter two year battle against the proposal to require judges to declare their vast wealth & business connections.

Gill recently announced he is standing down after holding the post for only three years, reported here: From Lord No-No to Lord Go-Go: Top judge stands down after transparency battle with Holyrood

Now, Gillian Thompson OBE – Scotland’s second Judicial Complaints Reviewer will face MSPs in a future evidence session at Holyrood.

The JCR is already on record as supporting the creation of a register of interests for members of the Judiciary.

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 earlier written evidence to the Public Petitions Committee, Gillian Thompson wrote of her support for the proposal, and indicated she too had created her own register of interests for her role as judicial investigator.

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.

JCR Gillian Thompson’s support for the creation of a register of interests for judges featured in the Sunday Mail newspaper:

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

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

By Mark Aitken Jan 18, 2015

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.”

MSPs held a full debate on calls to create a register of interests for judges - in the Scottish Parliament’s main chamber on Thursday 7 October 2014, resulting 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 full parliamentary debate was reported along with video footage and the official record, 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

Monday, May 11, 2015

INTERESTS INTERVENE: First Minister joins top judge in bid to block register of judicial interests as MSPs consider recalling Legal Affairs Minister over dodgy evidence & private meeting with Lord Gill

First Minister claims register for judges interests is ‘unworkable’ SCOTLAND'S First Minister Nicola Sturgeon has joined Scotland's outgoing top judge in a bid to block increased judicial accountability & transparency with the creation of a register of interests for judges.

The surprise move by the country’s most senior politician comes amid fears the judicial transparency proposal currently being considered by MSPs will expose the secret links between big money, big business, offshore private banking, staggering property wealth and Scotland’s mega powerful & secretive judiciary.

The First Minister also repeated claims made by Lord President Lord Brian Gill (73) - who accused “aggressive media” and  court users in an attempt to thwart the Scottish Parliament probe into why judges are so secretive about their vast wealth and connections.

MSPs on the Scottish Parliament’s Public Petitions Committee are due to debate plans to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary tomorrow, Tuesday 12 May 2015.

The proposals – under investigation by MSPs since January 2013 - call for 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.

The petition has cross party support from msps who backed a motion urging the Scottish Government to create a register of judicial interests at Holyrood on 7 October 2014 - reported along with video footage and the official record, here: Debating the Judges.

The latest, surprise intervention by the First Minister in the bid to bring transparency to Scotland’s secretive judges only came to light last week - although Ms Sturgeon’s letter is dated 30 March.

In the letter, which gives the First Minister’s view of petitions relating to justice issues - Nicola Sturgeon also revealed Legal Affairs Minister Paul Wheelhouse had a secret meeting with Lord Gill to discuss the petition in February of this year.

Writing in the letter to John Pentland MSP, Convener of the Public Petitions Committee, the First Minister said: “This petition calls on the Scottish Government to create a Register of Interests for the Judiciary. The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards - the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary - are sufficient. These safeguards, together with the register of judicial recusals, are sufficient to protect individuals from judicial bias.”

“Further to the evidence that the Minister for Community Safety and Legal Affairs, Mr Wheelhouse, gave to the Committee on 9 December 2014, he discussed this petition when he met the Lord President in February. The Minister acknowledged the Lord President's concerns about the introduction of a register of judicial interests. The breadth of such a register would make it virtually unworkable. It would need to cover not only financial interests, but also memberships of groups and associations and familial and social relationships. Even so, such a register might not capture relevant issues that could arise.”

“The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves. The Lord President has cautioned that such a register could also have unintended consequences. Consideration requires to be given to judges' privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. In addition, there is currently no evidence that judges who should have recused themselves from cases have not done so.”

The First Minister’s letter is an almost word for word quote from previous letters written by Lord Gill who has previously blasted msps on the Petitions Committee foreven to dare to consider the issue of increased transparency of the judiciary.

And, following what some have referred to as a ‘script’ written by Lord Gill - the First Minister’s letter is dated two days before the latest 1 April letter from the top judge to the Petitions Committee.

Lord Gill has previously claimed such a register could compromise judges' privacy by encouraging "aggressive media or hostile individuals" and that "The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the judiciary."

Gill also refused three invitations to appear at the Scottish Parliament and take questions on his hostility towards judicial transparency and a register of judges’ interests.

The surprise letter from Nicola Sturgeon supporting the elderly top judge – who has been caught in headlines flying around the world on grand 5 day taxpayer funded state visits to countries such as Qatar - predates Lord Gill’s announcement of his ‘retirement’ last week.

Having served three years as Lord President – the shortest term in the post for some time, the ageing Gill said he is stepping down at the end of this month.

The latest development in the debate around creating a register of interests for judges comes as MSPs were handed a copy of internal Scottish Government communications which conflict with testimony previously given to the Public Petitions Committee by Legal Affairs Minister Paul Wheelhouse.

The emails reveal Mr Wheelhouse deliberately misled MSPs over claims gangsters had threatened SEPA officials - claims which wheelhouse used to argue with MSPs at an earlier evidence session that judges wealth and connections to big business, banks and the legal profession must be kept hidden.

Conversations between aides to Mr Wheelhouse begging SEPA for examples of evidence for “the Minister to have in his back pocket” revealed no gangster threats had occurred. Instead, a farmer threatened a SEPA employee with a stick, and a fence had been pushed against another SEPA employee.

The now released email also raises questions on what knowledge the then Justice Secretary Kenny MacAskill knew of the material used by Wheelhouse – after MacAskill – who is now on the Petitions Committee – failed to question the Minister during his interaction with Wheelhouse at a previous Petitions Committee meeting, reported here: Too Many Secrets: Legal Affairs Minister Paul Wheelhouse substitutes for top judge in evidence to MSPs

MacAskill – a lawyer who trained at Glasgow based law firm of Levy & Mcrae who are now caught up in a multi million pound writ over the £400m collapse of Hedge Fund Heather Capital - is known to be against the plan to create a register of interests for judges.

MSPs on the Petitions Committee have now been asked to recall Mr Wheelhouse to account for his misleading testimony, and to face questions on his private meeting with Lord Gill.

It has also been suggested Moi Ali - Scotland’s first Judicial Complaints Reviewer (JCR) be recalled to give evidence on changes relating to judicial conduct complaint rules put forward by Lord Gill. The changes have been branded tweaks & window dressing in a previous report here: THE LORD'S RULES: Top judge's two year consultation & tweaks to rules allowing judges to investigate themselves is 'missed opportunity'.

During an earlier evidence session before the Scottish Parliament’s Petitions Committee, Moi Ali told msps there is little transparency or accountability in Scotland’s judiciary.

Among papers released for tomorrow's meeting, clerks have now recommended MSPs seek information from legal affairs Minister Wheelhouse on what took place at the secret meeting with Gill held in February and also to recommend Gillian Thompson OBE - the new Judicial Complaints Reviewer who replaced Moi Ali last year, attend to give evidence.

Gillian Thompson has already registered her support for a register of judicial interests in a letter to MSPs, reported here: DECLARE THE JUDGES: New Judicial Complaints Reviewer supports proposal to Scottish Parliament to create a register of interests for judges

The Sunday Herald newspaper reported on First Minister Nicola Sturgeon’s intervention on behalf of the judiciary and her opposition to the judicial transparency proposal:

First Minister rejects call for register of judges' interests

Paul Hutcheon
Investigations Editor Sunday 10 May 2015
 
NICOLA Sturgeon has rejected calls for judges to declare details of their finances in a register of interest. The First Minister said the proposal, lodged by justice campaigner Peter Cherbi, was "not necessary" and claimed existing rules were "sufficient".
 
Holyrood's Public Petitions Committee is in the middle of a long-term probe into whether judges, sheriffs and justices of the peace should be brought into line with other senior public sector figures.
 
MSPs, MPs, councillors and board members of public bodies are all required to register their outside financial interests.
 
A petition lodged with the Scottish Parliament in 2012 called for members of the judiciary to declare their "pecuniary" interests, which would include shareholdings, directorships and membership of external bodies.
 
Judicial officer holders can recuse - or remove - themselves if a conflict of interest arises during a case, but nothing more is required.
 
The plan was met with hostility by the country's top judge, Lord Gill, who repeatedly snubbed calls by the committee to give oral evidence. He relied on written testimony to blast a proposal he said could compromise judges' privacy by encouraging "aggressive media or hostile individuals".

Lord Gill concluded: "The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the judiciary."
 
The issue has now reached the desk of the First Minister, who has backed Lord Gill.
 
In a letter to John Pentland MSP, the Committee convener, she supported the status quo: "The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards - the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary - are sufficient.
 
"These safeguards, together with the register of judicial recusals, are sufficient to protect individuals from judicial bias."
 
She also repeated Lord Gill's fear about "aggressive media" and noted: "The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves."
 
The First Minister also revealed that Paul Wheelhouse, her Minister for Community Safety and Legal Affairs, met Lord Gill in December to discuss the petition.
 
In his evidence to the Committee, Wheelhouse said he feared a register could leave judges open to "threats or intimidation", adding that colleagues at an environment quango had already been threatened by organised criminals. However, emails between the Government and Scottish Environment Protection Agency revealed no link to organised crime.
 
Cherbi said: "I am surprised Nicola Sturgeon supports a judicial ban on transparency just because judges have been asked to declare their substantial interests. "We are always told if you have got nothing to hide you have nothing to fear. What are the judges hiding and what do they fear? "There cannot be one set of rules for judges and another for everyone else. A register of interests will enhance public trust in the justice system, not detract from it."
 
A Scottish Government spokesperson said: "The Scottish Government considers that a specific register of interests is not needed. Existing safeguards, including the Judicial Oath, the Statement of Principles of Judicial Interests and the system of complaints against the judiciary, are sufficient to ensure the impartiality of the judiciary in Scotland."

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

Thursday, May 07, 2015

Lord NO-NO to GO-GO: Scotland’s top judge Lord Brian Gill steps down after controversial three year term as Lord President - amid battles with Holyrood, media & transparency

Lord Gill to ‘retire’ after run-ins with politicians, press & transparency. SCOTLAND’S top judge, Lord President Lord Brian Gill has announced he is stepping down from office on 31 May 2015. Until a successor is found, the Lord President’s duties will be taken up by the Lord Justice Clerk, Lord Carloway.

Gill (73) who is Scotland's longest serving judge, has served a short three year term as Lord President, compared to previous holder of the office Lord Hamilton, who held the post for seven years.

In the course of a long and distinguished legal career Gill presided over significant changes to the Scottish legal system.

He also famously branded much of the Scots legal system as “Victorian” and “unfit for purpose” in his Scottish Civil Courts Review - which sought to change some of the antiquated structures of Scotland’s expensive, closed shop and out of reach civil courts.

However, many of the Civil Courts Review proposals were watered down by the Taylor Review, carried out at the insistence of the Scottish Government and the legal establishment - who feared giving the public easier and cheaper access to court may affect law firms’ profits.

For the past two years, Lord Gill fought a very public and bitter battle with the Scottish Parliament concerning MSPs investigations of transparency and accountability in the Scottish judiciary, amid plans to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary

The proposals to create a register of judicial interests 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.

Gill refused three invitations to appear before MSPs to give evidence on his intense opposition to a register requiring judges to declare their significant wealth and links to big business.

Faced with a no-show of Scotland’s top judge, members of the Scottish Parliament’s Public Petitions Committee took evidence from Scotland’s first Judicial Complaints Reviewer (JCR) Moi Ali. During questions at the Scottish Parliament’s Petitions Committee, Moi Ali told msps there was little transparency or accountability in Scotland’s judiciary.

And, in spite of Scottish Ministers attempts to thwart a debate at Holyrood last October 2014, msps overwhelmingly backed a motion urging the Scottish Government to create a register of judicial interests – reported along with video footage & the official record, here: Debating the Judges

At the recent Commonwealth Law Conference held in Glasgow during March 2015, Lord Gill fired another salvo at politicians, transparency and the democratic process – branding all as “insidious”.

Lord Gill told his startled audience: “The threats to judicial independence do not always come with a knock on the door in the middle of the night.  In a society that prides itself on the  independence  of  its  judiciary,  the  threat  may  come  in  insidious ways, even at the hands of well-meaning governments and legislators, in the name of efficiency and, ironically,  in the name of  transparency.”

After the speech, Gill and several judicial figures including Lord Neuberger fled the conference after learning Wikileaks founder Julian Assange was booked to speak at the event.

Lord Gill also supported the retention of corroboration – a key legal safeguard against miscarriage of justice - where evidence must be verified by two sources.

Brian Gill was first appointed as a Senator of the College of Justice in 1994. He was appointed Lord President of the Court of Session and Lord Justice General in June 2012, having held the position of Lord Justice Clerk from November 2001.

Under the Judiciary and Courts (Scotland) Act 2008, First Minister Nicola Sturgeon will now establish a panel to recommend individuals who are suitable for appointment to fill the vacancy.

It has been rumoured for several months senior figures in the Scottish Government have lobbied for a female candidate to become Scotland’s first Lady Lord President.

Court of Session judge Anne Smith, who was made President of the tribunals service by Lord Gill last summer, is seen by some as ‘a good bet for the post’.

TOP JUDGE WHO SAID NO-NO TO TRANSPARENCY & SCOTTISH PARLIAMENT:

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 at least two 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.”

Even though Scotland’s top judge opposes the creation of a register of interests, MSPs held a debate in the Scottish Parliament’s main chamber on Thursday 7 October 2014, which 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

Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:

The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, now Lord President Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.

The Civil Courts Review can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15

Gill, giving a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.

“It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Previous articles on the Civil Courts Review and reforms of Scotland's antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.

Wednesday, May 06, 2015

PARTY LORD: Judicial excess in the dock as Scotland’s top judge celebrates £58million taxpayer funded court refit with £36K exhibition & party bash at Parliament House

Lord Gill hosted taxpayer funded posh party for court refit. SCOTLAND’S top judge celebrated a £58million taxpayer funded refit on the Court of Session by holding a £36K exhibition and party which included trumpeters, archers and a get together for senior political figures and members of Scotland’s legal establishment.

However, Lord President Lord Brian Gill, 73, banned guests from drinking alcohol to toast the refit of Parliament House – Gill’s seat of power in the Royal Mile.

Documents obtained via Freedom of Information legislation show worried court staff debated whether they could obtain favourable press coverage for the event – which was held close to the independence referendum.

Principal court clerk Graeme Marwick asked Lord Gill about the possibility of alcohol being served to guests who included the Lord Advocate, top politicians from the Scottish Government and figures from the church. However, Gill said No.

The minutes of the discussions arranging the party reveal court staff worries that guests would not be able to meet and interact without a glass of wine.

Court staff meeting papers reveal discussions on exhibition & booze ban party. Under the heading of disadvantages of Gill’s booze ban,  one court official criticised the booze ban, saying there would be “No opportunity for a post ceremony glass of wine and canapes/entertainment and networking amongst the guests.”

Eager to provide senior guests with suitable music to accompany their sausage rolls and buffed, a member of staff queried: “Should there be entertainment at the function- possibly a string quartet from the Royal Conservatoire of Scotland?”

Lord Gill agreed to spend £750 hiring trumpeters from Glasgow's Royal Conservatoire. Gill is also a trustee of the Royal Conservatoire, based in Glasgow.

To the sound of music and political chatter, guests of the Lord President’s taxpayer funded bash were eventually treated to soft drinks and canap├ęs – costing £3,620.

One legal insider joked “Given who was in attendance I wouldn't be surprised if someone brought along an emergency flask of booze”

Hosting the event, Lord Gill also unveiled a brass plaque marking the major refurbishment of the sprawling Parliament House site, comprising of some 700 rooms within the sprawling complex of buildings.

However, speeches given by politicians and legal luminaries at the event failed to mention concerns which have now surfaced relating to who actually owns which parts of the Parliament House complex -  which has since been in the news after it had been discovered Scottish Ministers had gifted some of the titles to the Faculty of Advocates.

Details surrounding the loss of Parliament House to Edinburgh – come from an investigation undertaken by well known land reform campaigner Andy Wightman – who discovered that in 2006 the Scottish Government asked Edinburgh City Council to confirm the ownership of Parliament House – which includes Parliament Hall and Laigh Hall. The moves by the Scottish Government to clarify ownership of the court buildings occurred prior to the taxpayer funded £58 million refurbishment project (originally budgeted at over £120m) of the sprawling court buildings.

However, after inquiries by government lawyers on the exact ownership of Scotland’s most highest courts, Edinburgh City Council concluded they were unaware of who owned Parliament House. This led to ownership transferring to Scottish Ministers who then allowed the Faculty of Advocates to register the title deeds to the interior of the building in its name.

It transpired the Faculty of Advocates had in-fact, lobbied the Scottish Government to hand over ownership.

Writing on his blog, Mr Wightman said: “The Faculty of Advocates has for centuries regarded Parliament House as theirs. They had almost exclusive use of it and so, by means as yet unclear, within a month of Scottish Ministers taking ownership, the Faculty persuaded Scottish Ministers to convey to its ownership for no consideration the room known as the Laigh Hall within Parliament House.”

A trove of eighty eight pages of documents  obtained from the Scottish Government under Freedom of Information legislation later revealed Scottish Ministers plan to do nothing over their handing over of the Parliament Hall land titles to the Faculty of Advocates.

Throughout the documents – which contain communications between civil servants, briefings to Ministers, land reports and letters from Edinburgh City Council asking for meetings, it is clear Scottish Ministers favour leaving the titles to the nation’s top courts with the vested interests of the legal profession.

During a First Minister’s Questions session at Holyrood, Nicola Sturgeon was asked by Alison Johnstone  MSP (Lothians, Green Party) about the Parliament Hall land grab by the Faculty of Advocates.

In her reply, featured here: Parliament House handed over to Faculty of Advocates FMQ's Nicola Sturgeon 19 February 2015 Nicola Sturgeon claimed she found no fault on the part of the Scottish Government - who handed over the titles to the Faculty of Advocates – effectively little more than a lawyer’s lobby group. The First Minister went on to warn “ there is no easy solution to the issue of restoring title to the City of Edinburgh Council” without giving a real explanation of why the titles were transferred in the first place.

The titles to the Laigh Hall – Parliament House – Queen Street - currently stand in the name of “SIDNEY NEIL BRAILSFORD Queen's Counsel, Treasurer of HONOURABLE THE FACULTY OF ADVOCATES Edinburgh, as Trustee and in Trust for said Faculty”. Sidney Brailsford is none other than High Court Judge Lord Brailsford.

TOP JUDGE SILENT OVER PARLIAMENT TITLE SWAP

Taxpayers not invited to Gill’s £36K bash  got an informative leaflet on the £58million public spend on Parliament House. During the summer of 2013,  Scotland’s top judge Lord Gill – head of the Scottish Court Service Board, and the Scottish Court Service Chief Executive Eric McQueen appeared before MSPs at the Scottish Parliament’s Justice Committee to give evidence on court closures and the millions spent on Parliament House – yet neither the judge nor the Courts chief mentioned their astonishing secret to the MSPs present – that the title to Scotland’s highest court buildings had been swiped by the Faculty of Advocates in a deal on the sly with Scottish Ministers.

During questions from Justice Committee MSPs, SCS Chief Executive Eric McQueen gave evidence on the massive £60 million taxpayer funded spend on Parliament House.

The Court Service Chief told MSPs: “We are just coming to the end of the Parliament house contract; in total, the budget for it was £65 million and I think that we expect the final spend to be in the low £60 millions. The project has been delivered on budget, on time and on quality. How it has been delivered is a tribute to the Scottish Court Service.

McQueen continued: “I will give a potted history of the Parliament house situation. About 10 years ago, a scheme was in place that was going to run to way over £120 million. That was brought to a stop to allow us to reassess things and to consider the best strategy. At the same time, we looked at a business case for moving away from Parliament house altogether and having a development on a greenfield or brownfield site on the outskirts of Edinburgh. The major problem with Parliament house is that it is a grade A listed building and is a site of special historical interest. It should be a landmark building for the whole of Scotland.”

In an intervention, the Convener of the Justice Committee – Christine Grahame MSP said: “I am glad that you did not move to a greenfield site. It would have been a bit like going to B&Q. I do not mean to malign B&Q, but I like the old Parliament house building.”

Eric McQueen replied : “Had the decision been taken to move out of Parliament house, that asset would have been left with the Scottish Government. The infrastructure and the services were shot, and there was no fire certificate in place for the building. It would have cost as much to move out as to redevelop the building. From the point of view of the benefit to the nation and to the Scottish Government's purse, the investment of the £65 million in Parliament house over that five or six year period was quite a sensible business case decision.”

Sitting beside Eric McQueen was Lord President Brian Gill, who did not at any stage of the meeting volunteer information to the Justice Committee in relation to the titles arrangements of Parliament House, despite the multi million pound taxpayer funded refurbishment.

Pressed for a statement on why Lord Gill or Eric McQueen did not inform the Justice Committee of the fact tens of millions of pounds of taxpayer money had been spent on a building partly owned by the Faculty of Advocates – the Judicial Office refused to give any comment.

Tuesday, May 05, 2015

Scotland 2015: Someone said there is a General Election …

Look up, and you can see Scotland from anywhere in the UK. SCOTLAND should have a strong voice at Westminster. That much is certain.

We are a berth for the UK’s nuclear submarines. We build the ships of the Royal Navy. We are so popular (and important) bears fly off our coasts and sneaky submarines sneak around our fishing boats.

We contribute to the UK’s economy and the fabric of the country as a whole (regardless of the denial brigade) so much, London could never bear to let us go. It’s true!

And – yes - we house a collection of 700 year old judges hell bent on protecting their highly secretive and dubiously achieved judicial wealth from prying eyes.

It is also true our little, big, country is a possible candidate for vested interests & big business to frack for their own gain. Yes, their gain, not the wider community at large.

Vested interests, corporate boards and Chief Executives do not toast champagne over throwing free money at citizens or vital public services without some fiddle in the background. Fact.

And – sadly - we are an outpost of dodgy financial & legal services who go to extreme efforts to avoid scrutiny, accountability, regulation & transparency. Heather Heather. And some Capital.

In any case, there is a General Election this Thursday, and it is your right as a citizen - to vote.

Will anything change next week? Not really.

The NHS will still be in crisis. Statistics on crime (and everything else) will still be fiddled beyond plausibility. Increasing numbers of people across the UK will be forced to use Food Banks.

Oh .. Shocker. People in power you rely on for help will write back to you saying they cannot help.

Lord Gill – the Lord President & Lord Justice General - almost Napoleonic in title, will still be in Parliament House dancing to “Mysterious Ways” – or perhaps “Insidious Ways” - gaming out his latest military style exercise against judicial transparency on his WOPR WarGames computer.

Oh yes – and the rich get richer while the poor get poorer.

But, once every few years - when you – the electorate – are needed - it is YOUR chance to hold Government and all it’s fantasy and all it’s power – to account.

As you hold Government to account this week with your vote - think on this.

Some might say … a Government is only as good as it’s opposition. Inevitably, a Government is only as good as those who vote for it.

A strong opposition can - or at least should - hold a Government to account.

A strong, independent media often holds, and frequently advances the line on transparency and accountability - which helps hold Government to account.

Thursday 7 May 2015 is your choice, your voice, and your vote. Think. Don’t be bullied by vested interests or false and fantastical promises.

However you decide to vote, you have the right to decide for yourself. But please, do vote.

Thursday, April 30, 2015

TRENDS IN LAW: Legal services regulator SLCC calls for transparency over Law Society complaints procedures allowing lawyers to investigate & prosecute themselves

Lawyers investigating their own criticised by regulator. LESS than a week after the Scottish Legal Complaints Commission (SLCC) announced Law Society of Scotland insider Neil Stevenson as their latest Chief Executive, the pro-lawyer regulator has released a report calling for more transparent processes in the Law Society’s handling of complaints where lawyers investigate themselves.

The report - compiled before the Law Society took back control of the ‘independent’ SLCC last week - analyses trends in how the Law Society of Scotland handle conduct complaints about solicitors from 2009 to 2014.

Conduct complaints about Scottish solicitors: Trend analysis report, draws attention to trends in:

the numbers of conduct complaints;
the timescales involved in investigations; and complaint outcomes.

It also covers the two different outcomes available to the Law Society of Scotland’s Professional Conduct Committees when they uphold a conduct complaint - Unsatisfactory Professional Conduct and potential Professional Misconduct.

The report reveals that although conduct complaint numbers and timescales are generally decreasing, on average, hybrid complaints – those which incorporate elements of both conduct and inadequate service – take 2 years to be dealt with.  This increases to 3 years if a prosecution against the solicitor for Professional Misconduct is then raised at the Scottish Solicitors’ Discipline Tribunal.

Whilst the number of decisions being made by the Law Society of Scotland and the number of complaints upheld is steadily increasing, the level of compensation, fines and training orders remains low.  Compensation, fines and training orders are all available as sanctions when the Law Society of Scotland Committees uphold a complaint as Unsatisfactory Professional Conduct.  Although there is a tariff and written guidance relating to compensation, no guidance exists for levels of fines. Neither the compensation guidance nor the Unsatisfactory Professional Conduct decisions are made available to the public.

If the complaint is upheld by a Committee as potentially being Professional Misconduct, the Law Society of Scotland appoints a fiscal (usually a solicitor) to prosecute the solicitor named in the complaint at the Scottish Solicitors Discipline Tribunal. In at least 13 instances, the fiscal referred the complaint back to the Committee for the decision to be reconsidered. The SLCC said they question whether it is right that the Law Society of Scotland Committee subsequently revisits its decision – based on the advice of one individual, the fiscal.

In the report the SLCC recommends that the Law Society of Scotland:-

* Considers fast-tracking certain types of complaints.
* Continues to work with the SLCC to improve the effectiveness and efficiency of complaint handling, particularly in relation to hybrid complaints.
* Reviews the consistency of sanction awards.
* Revises and publishes written guidance and/or a tariff for Unsatisfactory Professional Conduct sanctions.
* Considers publishing information in relation to Unsatisfactory Professional Conduct decisions.
* Reviews the involvement of the fiscal in the determination process and remitting complaints back for secondary decisions.

The report follows a previous report on trends in service complaints.

Under the Legal Profession and Legal Aid (Scotland) Act 2007, the SLCC is the ‘independent’ single gateway for complaints about solicitors and other legal practitioners in Scotland, complaints about conduct are then referred to the professional bodies to investigate – leading to lawyers investigating their own colleagues – even when evidence of law breaking is uncovered.

In addition to investigating complaints about inadequate service by solicitors and firms, the SLCC – which has cost Scots clients a staggering £20 million plus since 2008 - has a role in investigating “handling complaints” – complaints about the professional bodies’ investigations – and in monitoring trends in complaints.

The SLCC has done little to curb the excessively pro-lawyer conduct of Law Society investigations and has had little effect at the Scottish Solicitors Discipline Tribunal (SSDT) – at one stage being criticised by the SSDT for not presenting enough cases for prosecution.