CONFLICTING INTEREST : Anti-transparency top judge Lord Gill will head new ‘independent’ unified Scottish Courts and Tribunals Service

Vested Interests must not be declared – Lord Gill. SCOTLAND’S top judge, Lord President Lord Brian Gill who is challenging parliamentary moves to create a register of judicial interests, and has three times refused to attend the Scottish Parliament to give evidence on the undeclared interests, secret earnings, business relationships & other matters involving members of the Scottish judiciary, is to be made the head of a new ‘independent’ body which will merge the Scottish Court Service (SCS) and the Scottish Tribunals Service (STS) into a new body called the Scottish Courts and Tribunals Service.

Last Friday, the Scottish Government announced in a Press Release that legislation to merge the Scottish Court Service (SCS) and the Scottish Tribunals Service (STS) into a unified body to be called the Scottish Courts and Tribunals Service will be brought forward early next year, creating an ‘independent’ joint administration for courts and devolved tribunals headed by a board which will be chaired by the Lord President as head of courts and tribunals judiciary.

Presently has STS has around 100 staff the majority of whom are based in Hamilton.  Staff support hearings held for different Tribunals across Scotland. It is envisaged that the front-line operational delivery of courts and tribunals business will not be affected as the current specialist staff and venues for tribunals and courts will remain.

The following tribunals currently administered by the Scottish Tribunals Service (STS) will pass into control of the new unified Scottish Courts and Tribunals Service headed by Lord Gill :

• The Additional Support Needs Tribunals for Scotland (ASNTS)
• The Lands Tribunal for Scotland (LTS)
• The Mental Health Tribunal for Scotland (MHTS)
• The Pensions Appeal Tribunal Scotland (PATS)
• The Scottish Charity Appeals Panel (SCAP)
• The Private Rented Housing Panel (PRHP)
• The Homeowner Housing Panel (HOHP)
• The Council Tax Reduction Review Panel (CTRRP)

Commenting on consultation responses to the Scottish Government’s plans to merge the two, already disreputable parts of the judiciary into one, Legal Affairs Minister Roseanna Cunningham said: “The majority of responses to the consultation supported a single body to serve both courts and devolved tribunals in Scotland. A joint body will ensure continued independence, with a joint body corporate chaired by the Lord President, while enabling on-going improvement and sharing of best practice.

Miss Cuningham continued : "It is paramount that the specialism of courts and tribunals continues to be supported by their specialist staff in a merged organisation. That’s why we aim to bring forward legislation early in the New Year to bring about this change and ensure a board structure which supports the business of both courts and tribunals.”

Chief Executive of the Scottish Court Service, Eric McQueen, said: “The Scottish Court Service Board carefully considered the feasibility of a merger with the Scottish Tribunals Service and has approved the proposal.”

Mr McQueen continued : “It is sensible to create a joint administration based on the current SCS model and we will work with the Scottish Tribunals Service to deliver this new organisation, recognising the unique requirements of courts and tribunals and taking account of the needs of their individual users.“

Chief Executive of the Scottish Tribunals Service, Martin McKenna, said: “I see this as a positive step for the Scottish Tribunals Service and those of us who work within it. This puts the administration of tribunals on the same independent statutory footing as courts whilst protecting the unique nature of tribunals for the people that use them.”

The Scottish Government claimed their ‘Justice Strategy for Scotland’ sets out the vision of a justice system in Scotland that is fit for the 21st century and that as part of this programme the Scottish Government are transforming the civil and administrative justice systems and this includes a tribunals reform project to ensure the best structures are in place for people who use tribunals.

However, neither Mr McQueen, Mr McKenna or the Legal Affairs Minister gave any idea in their public statements contained in the Scottish Government’s Press Release as to whether members of the new unified Scottish Courts and Tribunals Service including the Lord President himself, will be required to declare their full interests in a properly maintained and updated register of judicial interests as has been proposed in Petition PE1458: Register of Interests for members of Scotland's judiciary

So far, Lord Gill has bitterly resisted calls for members of Scotland’s judiciary to declare their interests, citing unacceptable breaches of judges privacy, and potential challenges to judicial authority from litigants if it were discovered that the judge in their case had failed to recuse themselves from hearings due to overly cosy relationships, and in some cases, money earning relationships with opposing counsel.

Lord Gill branded such challenges by “aggressive media” and “hostile individuals including dissatisfied litigants ” as “harassment” even though most people and politicians accept that judges who have clear conflicts of interest must recuse themselves when circumstances demand.

The Lord President previously told MSPs in a letter : “Consideration requires to be given to judges' privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary"

However, in spite of the Lord President’s stubborn refusal to speak in public on the lack of a register of interests, and serious, systemic problems with judges failing or even refusing to recuse themselves in court hearings, it has now been established through the Scottish Parliament’s investigation into Petition 1458, that the problem of judges failing to declare their interests or recuse themselves in court affects both the civil justice system and cases involving Scotland’s criminal justice system.

Recently the Sunday Mail newspaper reported that judges have sat in their own cause in criminal cases and have thrown out appeals against convictions handed down by other family members in the judiciary – without declaring any interests or recusing themselves in the case. The article from the Sunday Mail can be viewed here : Failure to Recuse : Evidence handed to MSPs in judicial register of interests proposal reveals judges who blocked injustice appeal failed to declare interests in court

Even more alarmingly it was revealed in the same article that judges such as Lord Osborne (now retired)  have thrown out appeals against cases they prosecuted themselves while working at Scotland’s Crown Office & Procurator Fiscal Service, without declaring an interest in relevant appeal hearings or recusing themselves as appropriate.

The move to unify the tribunals with the Scottish Courts Service has not received 100% support from all quarters. Significant criticism and the downside of this merging was reported in yesterday’s Guardian newspaper in an article by Richard Henderson, a former President of the Law Society of Scotland, here : Merging Scottish tribunals and courts – the unintended consequences

If a new unified Scottish Courts and Tribunals Service is to be created, transparency must be at its heart, and certainly all members of the board, members of the judiciary, those who serve on the tribunals and employees of the new unified courts & tribunal service must be required to declare their interests in a published, fully maintained and regularly updated register of interests.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, 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