Emerging evidence after my article last week reporting the Justice Secretary Mr MacAskill’s appointment of a lawyer identified in a claims & complaints fixing scandal at the Law Society of Scotland , now indicates the Justice Secretary may have deliberately misused references to the Office of the Commissioner for Public Appointments in Scotland, or OCPAS as it is generally known, which performs its duties according to legislation to independently regulate Ministerial appointments.
It seems the Justice Secretary felt, due to the nature of the tricky appointments of Martin McAllister and Lady Smith to the Judicial Appointments Board, his Department had to bring in an OCPAS Assessor to justify a series of appointments which now look increasingly like 'jobs for the boys’ .. or at least, jobs for lawyers ….
The problem for Mr MacAskill in that endeavour was that according to OCPAS itself who issued a statement : “Appointments to the Judicial Appointments Board for Scotland are not currently regulated by the Commissioner. We are not in a position to assign OCPAS Assessors to oversee appointments to the board of this body until such time as those appointments are statutorily brought within our remit. We did not assign an OCPAS Assessor to oversee these appointments.”
In my article of last week I revealed that :
*Martin McAllister who was appointed to the Judicial Appointments Board by Kenny MacAskill, was identified by Cabinet Secretary for Finance John Swinney in a claims & complaints fixing scandal at the Law Society of Scotland, which sought to delay and destroy claims from clients & members of the public against well known crooked lawyers.
*Lady Smith, who was also appointed to the Judicial Appointments Board by Kenny MacAskill, saw her husband, David Smith only a few weeks earlier appointed, to the Scottish Legal Complaints Commission , also by Kenny MacAskill, giving Scotland a legal first in an unprecedented 'husband and wife team' on key judicial and legal regulation reforms.
Since my article of last week, it has emerged through an investigation with OCPAS, the Justice Secretary and Justice Department may have knowingly and falsely claimed the OCPAS assessor had acted in her professional capacity as an OCPAS assessor and had followed and passed Mr MacAskill’s appointments to the Judicial Appointments Board.
A ‘legal insider’ on the scandal claimed today “There is no way the Justice Department can claim ignorance over OCPAS rules which have been well known in Government for years.”
This therefore, seems to have been a clear and deliberate attempt by the Justice Minister and Scottish Government Justice Department to mislead the public and Parliament on the nature of key legal appointments.
Justice Secretary MacAskill commented last week : "The Judicial Appointments Board currently operates on an administrative basis and is therefore not subject to OCPAS regulations. However, the selection panel included an OCPAS assessor and followed good recruitment practice in making the recommendations for appointment."
When asked about the Justice Secretary's statement, OCPAS angrily denied they had been contacted by Scottish Ministers over the Judicial Appointments or that their their Assessor, identified as Anja Amsel, was acting in her professional capacity as an appointments assessor :
OCPAS "We were not contacted by Scottish Government to assign an OCPAS Assessor to this appointments round. As these are not regulated appointments at the current time we would not have, in any case, been able to provide an OCPAS Assessor to oversee the round.
The relevant Scottish Government sponsor team for appointments to this body will have entered into a private agreement with the individual [Anja Amsel] who oversaw the round."
Late last week, after my report had been published, the Office of the Commissioner for Public Appointments in Scotland upon a brief investigation, ordered the Justice Department to re-write Kenny MacAskill's Press Release, ordering no reference be made to OCPAS under the circumstances, which then ended up as the following “However, the selection panel included an OCPAS assessor acting in an independent capacity and followed good recruitment practice in making the recommendations for appointment."
It seems however, the Justice Secretary was determined to keep in the OCPAS reference, albeit tentatively, to justify his appointment of colleagues in the legal profession to key areas of recent reforms to judicial and legal regulation.
While there is no suggestion at this stage that Ms Amsel did anything wrong, it remains questionable of Mr MacAskill why the Justice Department have been so reluctant to remove reference to her involvement despite requests from OCPAS to remove references to their department.
However, yesterday, OCPAS again ordered the Government to rewrite Kenny MacAskill's release an unprecedented second time seeing that any reference to OCPAS was removed :
OCPAS Statement “[OCPAS] have … written to the relevant sponsor team this afternoon asking for a second change to the press release such that reference to OCPAS is removed”
As of this afternoon, no effort had yet been made by the Government to correct Mr MacAskill’s failing claims of transparency for the Judicial Appointments Board selection …
The roots of Mr MacAskill's determination to involve OCPAS in the tricky appointments of colleagues from the legal establishment to these key areas of regulation appear to lie in the fact that OCPAS is carrying out an investigation into related appointments by Mr MacAskill of senior lawyers & Law Society Committee members, widely seen as sleazy in nature to what was to be the ‘independent’ Scottish Legal Complaints Commission which you can read more about here :
A source within the Government who did not wish to be identified said today that "Mr MacAskill and the Justice Department seem to have felt that dragging OCPAS into the appointments to the Judicial Appointments Board would be advantageous to the Government, weakening the independence of OCPAS and any possibility of a further investigation by anyone into Mr McAllister & Lady Smith's appointment to the Judicial Appointment Board."
So, while the Justice Department claimed an honest mistake had been made, it seems the Scottish Government deliberately set out to undermine any potential investigation into Mr MacAskills appointments to the Judicial Appointments Board, by involving a ministerial regulator already involved in an investigation related to one of the appointees, namely Lady Smith, but which OCPAS, in this case, had no remit to regulate ...
Guidance from the Office of Public Appointments for Scotland is fairly straightforward :
“Use of the Code as guidance
The Commissioner recognises that unregulated bodies may use the Code as guidance. In such instances, the OCPAS regulated logo may not appear in publicity or other materials relating to the appointment round. Leaflets and other information about OCPAS may not be included in the application pack.”
I understand that when bodies choose to do so they may refer to Government for a list of individuals who are willing to work on unregulated rounds on a freelance basis. Under no circumstances are such individuals permitted to advise that they are doing so in the capacity of OCPAS Assessor"
That seems fairly clear, and Mr MacAskill was well aware of those terms, so why did he choose to use OCPAS to justify what now appears to be a questionable appointments process to panel which appoints Scotland's judges ?
The Office of Public Appointments for Scotland were having none of Mr MacAskill's excuses, their statement continued to contradict the Justice Secretary's claims of an innocent muddle .. :
OCPAS Statement : "[OCPAS has...] discussed the press release with the relevant Scottish Government sponsor team and explained our expectation that no reference should be made to the use of OCPAS Assessors (OAs) unless they are working in that capacity. OAs may only work in that capacity on appointment rounds regulated by the Commissioner. As advised previously, appointments to JABS are not currently regulated by the Commissioner"
In a startling rebuff to the Justice Secretary amid a sense of sleaze in recent Ministerial appointments to the likes of the Judicial Appointments Board, the Office of Public Appointments for Scotland has now changed the rules under which their assessors work, and issued the following stern statement :
"The Commissioner has already changed OCPAS policy on the type of work that OCPAS Assessors may do such that in future no acting OCPAS Assessor may work as an independent assessor on unregulated appointments rounds. Revised service level agreements have been issued to all OAs to reflect that change in policy."
So it looks like Ministers trying to appoint professional colleagues and husband & wife teams to key regulatory positions wont be able any longer to drag in the Office of Public Appointments for Scotland to justify jobs for the boys. Well .. that surely is a good development .. and a little more scrutiny wont hurt anyone who doesn't have something to hide ...
A source within OCPAS then went on to confirm that Ms Amsel who was asked by the Justice Department to sit in on Kenny MacAskill's appointments selection is to leave OCPAS this year : "Anja Amsel and one other assessor, who are working notice on the old service level agreements which allowed this practice, are ceasing to work for OCPAS this year."
OCPAS have now been asked to investigate why their office has been misused in this way in an apparent attempt to justify the appointments to the Judicial Appointments Board.
Well done Mr MacAskill. How many more organisations and people will you rope in to smooth over courtesy appointments from the legal establishment to keep business, expenses claims, salaries and regulation among themselves ?
Mr MacAskill, how about some showing some Ministerial responsibility towards the Scottish public instead of putting the legal profession above ordinary people’s rights and consumer protection ?
Is it not about time we had a truly independent regulator of Scotland’s legal profession, instead of Law Society of Scotland string pulling and your acquiescence to it ?