The definition of the word "independent" certainly takes a tumble when it comes to matters involving the Scottish legal establishment - as a judge is put in charge of a planned new complaints procedure system against judges & sheriffs, long resisted by the judiciary to the point of threat of legal action.
Certainly while the limited moves to reform Scotland's 'law unto itself' judiciary are welcomed, the lack of reforms to the way members of the judiciary are appointed, and regulated, are disappointing to say the least. In essence, the accountability of the judiciary will still rest with, the judiciary in the proposed Bill.
The Judiciary & Courts (Scotland) Bill, will see the current Lord President, Lord Hamilton, made head of the Scottish Judiciary, along with taking on responsibility for all court business, conduct issues involving complaints made against sheriffs & judges, while also guaranteeing statutory independence for the judiciary.
Read more here on the Judiciary & Courts (Scotland) Bill from the Scottish Government in acrobat pdf format : Proposals for a Judiciary (Scotland) Bill
On the face of it, not too bad a deal for the judiciary then, who have long threatened rebellion, even legal action, against any proposed reforms to the judicial bench, or even any prospect of an investigation into the judicial bench
In fact, the judiciary have long felt strongly over the issue, or even just a 'thought' about judicial reforms, an example of which in 2001, where the Sheriffs Association threatened the Justice 1 Committee of the Scottish Parliament, Chaired by Christine Grahame (SNP) MSP that even if only the Committee investigated the status of Sheriffs, there may be legal action under Article 6 of ECHR - no surprise then that Ms Grahame's Justice 1 Committee held a meeting in private and then extracted the Sheriffs from their "regulation of the legal profession" inquiry, which to all purposes was ran by the Law Society of Scotland anyway, and also saw members of the public embargoed from testifying in public over their difficulties with the legal system.
You can read the Sheriff Lockhart's letter to Christine Grahame's Justice 1 Committee who were carrying out their 2001 "Regulation of the legal profession" cover up inquiry ordering them not to consider investigating members of the judiciary on the Scottish Parliament's own web site here : Secretary of the Sheriffs Association Sheriff Lockhart's letter to the Justice 1 Committee "Regulation of the legal profession" inquiry 2001
Threatening legal action against the Parliament and Government seems to be a hobby for members of the legal establishment, where, when faced with the loss of control over part of the complaints system against solicitors, Law Society Chief Executive Douglas Mill threatened the Parliament & Executive with legal action if the Law Society wasn't allowed to remain supreme regulator of the legal profession.
My coverage of Douglas Mill's threat of legal action over losing complaints regulation : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill
Douglas Mill, as you all know, brought in an English QC - Lord Lester of Herne Hill, to author an opinion it was 'against a lawyers human rights under ECHR' for anyone else except a lawyer to investigate a complaint against a lawyer ! - a desperate move which didn't succeed in preventing the relevant legislation contained in the then Legal Profession & Legal Aid (Scotland) Bill from being passed into law in late 2006.
So you see, the legal establishment do have a track record in threatening legal action against any prospect of reforms to the way they regulate or conduct themselves - hardly something one could call acceptable in a democracy ?
Douglas Mill, who can't go quick enough as Chief Executive of the Law Society, according to some lawyers themselves, even lied to Parliament over the Law Society's interference in claims & complaints against crooked lawyers ... so if the legal establishment feel themselves brave or strong enough in their power to lie to Parliament & Government Ministers, on camera - how can they ever be trusted ?
My coverage of Douglas Mill's misleading testimony to the Scottish Parliament & the confrontation with John Swinney : Law Society boss Mill lied to Swinney, Parliament as secret memos reveal policy of intervention & obstruction on claims, complaints.
Given the Scottish taxpayer will be pumping in a few million pounds a year into the new Scottish Legal Complaints Commission, which saw the same Lord President recently help with the appointments of its members, mainly lawyers, ex police and other figures to 'independently' investigate complaints against Scottish solicitors, it might have been more effective to hand over the complaints & investigation process involving complaints made against the judiciary to the new 'independent' commission .. at least taking the judges themselves out of having responsibility for the procedures, which surely are something of a conflict of interest.
However, it appears giving an 'independent' body any oversight or regulatory role in matters involving the judiciary is one step too far for Scotland's judges, who are as intent as Douglas Mill, the current (resigning soon) Chief Executive of the Law Society of Scotland in maintaining control over regulatory matters for themselves .. as well as appointments of their colleagues, and every other matter involving the judiciary.
One of the arguments for the Judiciary & Courts Bill, is to guarantee the independence of the judiciary in statute. That is of course a good and necessary thing. No argument there - but there has to be transparency & accountability, and who is going to guarantee that ? the judges themselves ? ... I think not, as we have all suffered the legal profession's attempt to do that over the decades by way of the Law Society of Scotland investigating complaints against lawyers - a very corrupt arrangement indeed, as many media outlets have reported over the years - and many of us Scots have experienced first hand.
I have covered at length previously how the Law Society have investigated complaints against lawyers, here are some examples :
Lawyers complaints system thought to have caused intimidation of clients for years
Andrew Penman & Norman Howitt : Lawyer & accountant team up to ruin Cherbi executry estate
Quoting today's Scotsman article : "The bill also aims to modernise the machinery for sacking judges and sheriffs, who have long been considered "above the law", on the grounds of unfitness for office. Under the proposals, they would be investigated by a tribunal chaired by a judge and containing a lay element."
Yes indeed, the Law Society of Scotland have lay members on their Complaints Committees - and they have done not one bit of good whatsoever - usually always siding with the lawyer element to get crooked lawyers off the hook, and even bizarrely changing their decisions to prosecute, after secret intervention from senior members of the Law Society itself.
In short, the lay element of regulation does not work, when it comes to professions such as lawyers, accountants and other 'self regulatory' professions which certainly qualifies as a good description of the way the judiciary handles complaints against itself ...
I have reported on matters regarding the 'lay element' of Committees involving the legal and accounting professions before - where these two professions regularly swap individuals and senior members, to ensure complaints against each other's respective members are covered up to the nth degree.
Restrictions required on the interests of lay members in the world of self regulation
Oh, and if you are wondering about how the new Scottish Legal Complaints Commission lay membership qualifies as independent, read the following article, which reveals that 'independence' or 'lay membership' when it comes to all matters legal, is anything but.
While of course, the Lord President and the judiciary should be independent of Ministers, the relationship between Minister & the Lord President seems to come in handy for the legal establishment when for instance, the Lord President and Justice Secretary sit down together to cancel any applications for rights of audience & representation made under Sections 25-29 of the Law Reform (Miscellaneous Provisions) Act 1990, which were implemented only after a long campaign from the legal profession to keep them off the law books, ensuring that only lawyers and the legal profession could grant the public access to justice & legal services.
In fact, so intent was the legal profession on maintaining a closed shop of legal services, a serving Lord Advocate, Lord Hardie recommended repealing of Sections 25-29 to keep the lawyers monopoly on the publics use of legal services, a tradition the current Justice Secretary, Kenny MacAskill, and the Lord President have been continuing, by vetoing all applications for entry into the legal services market since the 2007 implementation of Sections 25-29.
So, the Lord President & Ministers get along fine when it comes to excluding the public from freedom of choice of legal services ... but not when it comes to regulation of the judiciary ...
To quote the Scotsman article once more : "It is likely a code of conduct will have to be drawn up, governing the conduct of Scotland's sheriffs and judges."
If that code of conduct is anything like the one used by the Law Society of Scotland, it will be as much use as no use, and will even contain such things as the ability to make & change rules as they see fit ... a great vote for transparency & accountability ...
Independent regulation of the judiciary and an independent appointments process - a few 'great democracies' seem to get along with it fine ... across the Atlantic for instance ... so how about some 21st Century reforms for the legal establishment in Scotland .. not 17th Century reforms as we seem to be getting ...
Finally, a brief note on something which has been raised in comments to my article on the Douglas Mill resignation.
Yes, its true the Law Society are out for revenge over John Swinney's questioning against Douglas Mill before the Justice 2 Committee over the Law Society's interference & intervention in claims & complaints against crooked lawyers.
Some documents currently in circulation, with an origin from 'legal quarters', seem to be an attempt to discredit individuals who have taken a stand on certain issues. This is nothing new, we have had this before, and we will have it again. This is the legal profession's way of defending itself - resorting to dirty tricks when things don't go its way and mounting highly personalized campaigns against people to 'discredit them'.
Whatever the Law Society tries to do against Mr Swinney, or anyone else who has taken a stand on such issues, will only undermine the legal profession itself and their position, while hopefully at the same time, kicking into touch the Justice Secretary who still seems to be so in love with the Law Society and his legal colleagues. After all, the Justice Secretary can hardly go around praising the very profession which seems to be bent on causing trouble for one of Scotland's most capable politicians as many of you have pointed out in emails to me today.
Good thing its all on video, isn't it ...
The Scotsman reports :
Shake-up to ensure that judges are not a law unto themselves
By Michael Howie
SCOTLAND'S judiciary will undergo one of the biggest overhauls in legal history under new legislation designed to protect judges and sheriffs from ministerial interference.
The Judiciary and Courts (Scotland) Bill, published yesterday, proposes to make the Lord President, currently Lord Hamilton, the head of the Scottish judiciary, with overall responsibility for all court business.
If approved by MSPs, the bill will, for the first time, place a statutory duty on the First Minister to safeguard judicial independence.
However, the radical proposals will also see members of the bench subject to a formal complaints procedure to deal with allegations of misconduct.
For the first time, witnesses and accused who feel they have been mistreated by a sheriff or judge will be able to trigger disciplinary proceedings which, in extreme cases, could result in the official being removed from their post.
The bill proposes to move responsibility for the running of the Scottish Courts Service from ministers to a new board that will include judges and be chaired by the Lord President.
The historic move last night appeared to have eased fears that the Lord President would become increasingly dependent on the support of government-selected civil servants, blurring the lines between two pillars of democracy which have existed in Scotland since the 1500s.
The moves will give judges greater freedom to put forward their own policy ideas to ministers regarding how key areas of the justice system should be run.
The bill also aims to modernise the machinery for sacking judges and sheriffs, who have long been considered "above the law", on the grounds of unfitness for office. Under the proposals, they would be investigated by a tribunal chaired by a judge and containing a lay element.
It is likely a code of conduct will have to be drawn up, governing the conduct of Scotland's sheriffs and judges.
Some sheriffs are thought to be opposed to the move, believing it is an attack on their independence as they will constantly have to watch what they say.
However, ministers have rejected that charge, insisting sheriffs and judges should be subject to the same rules about decent behaviour that govern other office-bearers.
Kenny MacAskill, the justice secretary, said the bill would "strengthen and modernise" the judiciary, adding: "The legislation is of constitutional significance (and] considers the relationship between the judiciary and other branches of government."
Lord Hamilton, who welcomed the bill, said: "I believe the bill presents an opportunity for the Scottish Parliament to make law of considerable constitutional significance, which will place the relationship of the judiciary with the Scottish Government, and with the parliament itself, on a new footing."
He said there had been dialogue over the proposals between judges, ministers and officials for two years, adding: "That dialogue has been constructive and allowed for detailed and productive discussion on the full range of topics in the bill.
"Of course, that does not mean the senior judiciary agree with each and every detail of it. We shall wish to study its provisions carefully over the next few months and listen to the views of others about the bill, all with a view to our making suggestions to the parliament as to how its provisions might be improved."
One leading QC, Paul McBride, said the proposals would help to bring "errant" sheriffs and judges to book. "This is more to do with the conduct, both on and off the bench. It will allow errant people who behave inappropriately to be brought to account.
"But, vitally, they will still be able to take decisions that will be unpopular among our political leaders."
He said the legislation represented the "biggest review there has been of the role of judges and sheriffs in a modern society".
"The hope is that judicial independence will remain and be strengthened – but that if there is judicial incompetence, there is a process by which such a person can be removed from office."
KEY POINTS
• Statutory guarantee of judicial independence
• Make Lord President head of the Scottish judiciary with responsibility for court business, training, welfare, deployment and conduct
• Make Scottish Courts Service a non-ministerial department run by board chaired by Lord President
• Formal complaints procedures for conduct issues involving a sheriff or judge
• Streamline procedure for considering fitness for office of judges and sheriffs
28 comments:
Judges will never allow outsiders to interfere in complaints and appointments Peter but that wont stop them in insisting on perks for themselves in laws they write themselves !
laughable ! a judge put in charge of complaints against other judges and they call it independent !
i think the word independent should be struck outof the dictionary because this lot dont know what it means !
Who are they kidding ?
Nothing will happen to any judge under this proposed system.Just another talking shop to sweep complaints and tales of bent judges under the carpet
So The Scottish Judiciary has now achieved what the Law Society of Scotland has long since provided - a regulatory system fit for a 'banana republic'.
I think you are writing with the newspapers on this stuff.It cant be you just wrote this and the level of detail without any foreknowledge.
Anyway good writing.Pity they didn't use yours instead as it shows a different line on whats really going on.
Who is next on the MacAskill list for strange regulation choices ? perverts to regulate perverts is it ? or do we have that already !!
Good show Peter keep those wigs on their toes if they have any left that is
I like your bit about Lord Hardie too.I bet he didn't think that would ever get out about him wanting those laws repealed ! How unfriendly !
A well written analysis Mr Cherbi.I doubt there are any members of the press who could have achieved that level of detail with supporting references.
I might point out the SNP are floating the Scottish Executive's proposals for the Judiciary & Courts Bill.
I wouldn't be surprised if this has been done so that any perceived failures within the proposals or difficulties during the parliamentary process will enable Mr MacAskill to lay the blame on the old lab/libdem executive.
It will be up to you and anyone so inclined to point out the parts lacking in these proposals and I think you have made a fine start with this posting.
I could tell you a few horror stories about sheriffs and judges but I think you will know plenty yourself.There is a good comment in the Scotsman on this story about no one having a vote on who is or becomes a judge compared with politicians whom we can be rid of at each election via the ballot box.I echo that comment and reckon this is just window dressing from the judiciary itself otherwise it wouldn't be happnening after all you have revealed on it.We don't need any more window dressing from judges lawyers etc.We need some changes and what MacAskill is proposing wont change anything.
Read the following from the times - even the Law Society in England agrees with you !
http://business.timesonline.co.uk/tol/business/law/columnists/article3283286.ece
#Anonymous @ 4.18pm
I agree - which is why truly independent regulation is needed, not just for the legal profession, but those who serve the law - and I think the emphasis should be that they do serve the law - therefore they must be accountable to an independent & transparent body - not themselves.
#Anonymous @ 4.42pm
That sums it up quite well.
#Anonymous @ 5.17pm
Correct.I think one could easily compare the proposed format of regulation to the current role of the Law Society of Scotland - which has not worked well for the public, but has worked well for crooked lawyers.
#Anonymous @ 5.58pm
Yes it has. Banana republic here we come ...
#Anonymous @ 7.16pm
A little from column A, a little from column B ...
#Anonymous @ 8.01pm
We already have that I think.
#Anonymous @ 1.52am
Thanks. Only reporting events of course - and a little bit of opinion on ideas for change ...
Yes I agree about Lord Hardie .. I don't think he ever thought for one minute his idea of repealing Sections 25-29 would ever become public - probably one of the reasons the last Scottish Executive spent so much money on legal teams to prevent that particular FOI release ...
#Anonymous @ 5.24pm
Yes, you are correct - the proposals for the Judiciary & Courts Bill came from the previous Scottish Executive.
It will be interesting to see how it goes in Parliament though, as such a Bill would surely have to go before the Justice Committee - which is currently chaired by an ex-jp and official admirer of Douglas Mill - Bill Aitken (Conservative)...
Annabel Goldie will probably tell us again that a jp who professes to admire the legal profession and even attempt to amend legislation at its direction, can consider anything to do with the judiciary and not have a conflict of interest - but the more honest thinking among us know different ...
#Eddie @ 6.42pm
Yes I saw it thanks - and its a valid point.
As I say, independent regulation, and fully independent regulation at that is required for the judiciary too, not just the legal profession itself, from whom the judiciary spring.
Learning some of the histories of those members of the judiciary from when they practised law may also be in the public interest, not in theirs I assume though ... nothing wrong with a bit of public disclosure surely ?
#Anonymous @ 7.07pm
Thanks, a very good article in the Times - just reinforces what I say - although no doubt the Justice Secretary will come up with a few excuses to say Scotland deserves less etc because we have a 'special case' legal profession who have to be excluded from anything which might give them a few sleepless nights ...
Good comments and very revealing replies from Mr Cherbi.
I agree John Swinney outshines Kenny MacAskill on this matter and just about everything else.One is an asset to the party,the latter is a liability unless the big chief kicks his behind into touch.
Pleased to see you continue to support Mr Swinney on this.You are a real credit to the legal stuff Peter - you really get to the root of things the newspapers miss out.
Keep up the good work !
I do not see anything in those proposals which make judges and sheriffs accountable.the whole thing is window dressing and sticking preferred people onto these tribunals as lay element will be used to justify their existence.
anyway if it is from labour it wont be any use so start again and do it right but dont involve the lawyers judges and anyone else from the justice system this time round !
A good move to make the Lord President head of the judiciary but he shouldn't be given a role in complaints handling and neither should any other members of the judiciary.
A very revealing account of the proposals Mr Cherbi.I accept your version and hope these judges wont be allowed to get away with regulating themselves.
Keep up the good work as others say.
It wont have escaped the attention of the judges how well the law society were able to protect crooked lawyers so theyve said lets have the same system for us - we control the complaints we control the regulation we control the peoples ability to get to court.Where does that qualify as independence - more like dictatorship and the judiciary are going to get away with it again because they will only be accountable to themselves and as you know yourself that means no accountability at all.
#Anonymous @ 5.56pm
I agree entirely.
#Anonymous @ 4.40pm
Thats why they want to replicate the way the Law Society handled complaints against solicitors, and Judges should be very familiar with that system as they were and still are, lawyers themselves.
Could do with some comment from you on the Wendy Alexander story Peter ! Labour say Dyer stitched her up so what do you think ?
" ...while hopefully at the same time, kicking into touch the Justice Secretary who still seems to be so in love with the Law Society and his legal colleagues. After all, the Justice Secretary can hardly go around praising the very profession which seems to be bent on causing trouble for one of Scotland's most capable politicians as many of you have pointed out in emails to me today."
Very well put and spot on as always Mr Cherbi : "kicking into touch the Justice Secretary" is indeed the order of the day.
After all, does Scotland really want a "Justice" Secretary who is so in bed with the legal establishment he will, as an ex-solicitor, protect, help and favour his former colleagues at all costs ... including stabbing his SNP colleague, Mr Swinney, in the back as he did.
Can i suggest to any brave investigative journos out there to start looking at MacAskill's fiddles when he was a practising solicitor ... i understand he may have been fiddling (his Legal Aid claims) whilst clients burned. If true, then Scotland has a very crooked and corrupt "Justice" Secretary currently in post, which can only be a bad thing for ordinary Scots out there who have suffered injustice and are seeking access to justice.
Or, as i have noticed in reading your blog over recent weeks, i learn that MacAskill is currently withholding very harrowing and damning case files from the family of a seriously unwell loved one who was abused and neglected by the Edinburgh and Scottish authorities over several years ... a horrific case that MacAskill was personally involved in, but who covered up for everyone involved in the case.
Quite a self-protecting, and protector of his sacred cow chums, "Justice" Secretary Scotland currently has ... and, from what i read about that abuse and neglect case he continues to cover up, an altogether very cruel, wicked and corrupt man he appears to be.
Get rid of him Mr Salmond ... for the good of your party and, more importantly, the good of the Scottish people ... who you have been elected to serve and represent with probity and with THEIR "best interests" above all else ... including the career of a very corrupt politician.
I agree with you that putting a judge in charge of complaints against themselves will do nothing
I made a complaint against a sheriff who ruled against us in a land dispute - the pursuer is a partner in a law firm the sheriff used to be in and several orders against us later the bastards at the Scottish Government still don't want to know and the Law Society refused to investigate the complaint even after we have a letter sent to his old law firm telling them we would lose !
Its all about wanting to take our land for a development and we will not sell and those bastards are doing everything they can to make our lives a living hell - sheriffs judges lawyers and the police now have been told not to attend our house if we call to report harassment from this group of nasties all because we have a tape of one of the police telling us the story of how the sheriff became a sheriff
#Anonymous @ 2.08pm
I don't have much confidence in the complaints workings of the Scottish Parliament but when Garry S Watson was given post initially as 'temporary Standards Adviser', Mr Watson being the former Scottish Legal Services Ombudsman who changed his report into the Andrew Penman compliant on orders from the Law Society, I knew that complaints involving matters at the Parliament would be subject to all kinds of fiddles in the future ...
I remember well how Mr Dyer refused to investigate David McLetchie over matters which later caused him to resign as Tory leader.
I still have the emails from Mr Dyer, rather obstructive to say the least, but I told him I would just bypass his office and do it in the press - success of course, more so than any whitewashing report on matters many at Holyrood knew of for around two years but kept quiet about to protect their own expenses fiddles ...
I'm all for bypassing people like Mr Dyer and holding politicians, lawyers & the like to account in the media - lets the public know more about what is going on, and gives a face to those crooks who seek to hide themselves in whatever venue they are ...
#Time "Liability" MacAskill was gone @ 12.17pm
I agree with you, although it seems our Justice Secretary has done a runner from various promised press appearances lately - maybe he thinks silence on some issues will make them go away - others from the SNP don't though, who are presently emailing me some interesting info for 'tactical' publication ...
#Anonymous @ 2.36pm
Sounds like you just might have a bent Sheriff there - don't waste your time making a complaint, make the matter public, make sure you have all the documentation, evidence, even a few photos & movies, and we will see what we can do ...
Remember - openness, honesty and a good dose of publicity assists those who suffer injustice - intimidation, censorship, silence and secrecy assists those who abuse, ruin and malign people's lives for their own profit or advancement ...
Sheriff rules in favour of his ex law firm partner ? yeah I'd say that is a wee bit bent !
If you are collecting Sheriff stories now I have a good one where a Sheriff ordered the court cleared when mention was made a lawyer at the centre of a criminal case was cleared by the law society of any wrongdoing.A criminal charge, not a complaint from a client.The good Sheriff did not want the media to learn about that one but you may be able to tackle it.Sheriff seems to have a chequered history as a lawyer too.
Any stories on crooked sheriffs be sure to send them to Scotland Against Crooked Lawyers at http://www.sacl.info
Crooked Sheriffs were probably crooked lawyers too so help everyone to know who and what passes themselves off as the law !
complaining against a sheriff is a dangerous exercise.i did and was threatened by the police on orders of the fiscal.probably something to do with the fact the sheriff i was involved with convicts everyone the crown sticks in front of him no matter if they are innocent or guilty.
#Anonymous @ 4.30pm
The Law Society of Scotland have no remit to clear a solicitor of criminal charges even though I have seen & heard allegations they have interfered in criminal investigations before ... which have curiously ended up with dropped charges ...
Email me the details please ..
# http://www.sacl.info @ 6.10pm
Yes I hope people do send any details of cases of complaint against lawyers, or any information they have relating to the legal profession and scandals, to SACL.
#Anonymous @ 7.51pm
I dont think the Fiscal's office can threaten someone with the Police just because they raised a complaint against a sheriff ... something which should be publicised to say the least as it sounds like an abuse of power and something else much worse ...
not surprised the sheriffs and judges have got up to stuff because they were lawyers at some stage in their career and stands to reason they want to keep complaints for themselves
is there anything to do with the legal fraternity in Scotland honest ? i suppose not after reading some of your stuff.
interesting stuff about Swinney and the Law Society
I take it all those expenses claims which were being passed around by the twats from the LS last week were revenge for that video.Didn't do much good though did it or have the papers yet to run it ?
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