The vested interests of secrecy : Justice Secretary sides with anti-transparency top judge, refuses plea for more powers, wider remit of Judicial Complaints Reviewer

MacAskill sides with secrecy for judges, rejects plea for increased powers for Judicial Investigator. IN A MOVE likely to increase concerns about the lack of openness in the Scottish legal system, Justice Secretary Kenny MacAskill has sided with the position of Scotland’s anti-transparency top judge, Lord President Lord Brian Gill who has issued a stark refusal to share detailed information with Moi Ali, Scotland’s independent Judicial Complaints Reviewer (JCR) about outcomes of decisions on complaints made against judges.

In a letter to David Stewart MSP, the Convener of the Scottish Parliament’s Public Petitions Committee, Justice Secretary Kenny MacAskill rejected pleas to increase the remit and powers of Moi Ali, who is tasked with reviewing how complaints made by members of the public against the judiciary are handled by the judiciary themselves.

Protests from Scottish judiciary limited powers of independent Judicial Investigator. Mr MacAskill was responding to concerns raised by JCR Moi Ali in evidence to MSPs who are considering Petition PE1458: Register of Interests for members of Scotland's judiciary in which the JCR told the Scottish Parliament’s Petitions Committee there was little point to the existence of her office, created by the Justice Secretary in the Judiciary and Courts (Scotland) Act 2008.

In spite of detailed evidence heard at Holyrood that the lack of powers was hampering the work of the Judicial Complaints Reviewer, the Cabinet Secretary for Justice said in his letter : “I consider that given the relatively short time the post of JCR has been in existence, and the modest number of reviews that have been handled in that time, it is premature to review the powers of the role. I am therefore not persuaded of the need for any change to the role or its functions at this moment in time.”

A detailed report on the evidence given by Judicial Complaints Reviewer Moi Ali to MSPs at Holyrood on the role of her office & remit along with the benefits of a register of judicial interests, can be viewed in an earlier report 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

The Justice Secretary’s refusal to grant further powers comes in the wake of Lord Gill’s refusal to share further information with Moi Ali’s office on what happens to a complaint after there has been a referral made by the JCR.

In a report featured on Diary of Injustice last month, it was revealed the Judicial Complaints Reviewer recently wrote to MSPs on the Petitions Committee informing them she was being treated as a “third party” by the Lord President over how information is shared about decisions taken with regards to complaints made about judges.

The JCR told MSPs the Lord President had informed her “You have a clear but limited remit. The nature of your work and the terms of your remit do not involve any follow-up.”

First Annual Report of JCR revealed Scotland’s top judge froze out independent Judicial Investigator. This latest refusal of the Lord President to share information with the JCR came after it had been previously reported in February by the Sunday Mail newspaper and featured on Diary of Injustice that the JCR’s first Annual Report revealed Lord President Lord Gill ‘froze out’ Judicial Complaints Reviewer amid series of revoked findings, secret unshared memos & dismissed complaints.

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

The Sunday Mail newspaper has featured a report on the Justice Secretary’s refusal to grant more powers to the Judicial Complaints Reviewer, and put Scotland on a parity with the rest of the UK, regarding how complaints against the judiciary are handled.

MacAskill snub for Justice Watchdog

By Russell Findlay, Sunday Mail 10 November 2013

Justice secretary Kenny MacAskill has rejected a plea to give teeth to a watchdog who probe complaints about judges.

The move comes after Moi Ali revealed there was “little point” to her role as Scotland’s first Judicial Complaints Reviewer (JCR).

But MacAskill won’t grant Ali the same power as her equivalent in England and Wales.

He said: “I consider that given the relatively short time the post of JCR has been in existence, and the modest number of reviews that have been handled in that time, it is premature to review the powers of the role.”

MacAskill created the JCR post in 2011 but critics blame fierce judicial opposition for its lack of teeth.

In England and Wales, Moi’s equivalent can overturn decisions, order reinvestigations and ask for victims to be compensated.

But she can only ask the Judicial Office for Scotland - headed by top judge Lord President Lord Gill - to review how complaints were handled.

Ali told the Holyrood petitions committee in September: “There’s no real independent oversight. If you provide oversight without powers, then there’s almost little point to it.”

She added: “The real issue is how the public and the judiciary are best served, and in my view that would be by independent oversight with teeth - an ombudsman.”

Mr MacAskill’s letter to David Stewart MSP, the Convener of the Public Petitions Committee in full :

Justice Secretary tells msps : No further powers for Judicial Investigator. Writing to the Convener of the Petitions Committee the Cabinet Secretary for Justice, Kenny MacAskill said : Thank you for your letter of 24 September 2013 in relation to the role of the Judicial Complaints Reviewer, her powers and resources available to her.

By way of background, Ms Moi Ali, the first Judicial Complaints Reviewer (JCR), was appointed under the Judiciary and Courts (Scotland) Act 2008 (the 2008 Act) by Scottish Ministers, with the consent of the Lord President, for a period of three years from 1 September 2011 until 31 August 2014. The 2008 Act makes provision for a scheme to be established to handle complaints about the conduct of the judiciary. The mechanism is set out, in rules made by the Lord President (Complaints about the Judiciary (Scotland) Rules 2011), which provide that complaints about the personal conduct of a judicial office holder should be sent to the Judicial Office. If, after investigation by a nominated judge, the complaint is upheld the Lord President may decide to take disciplinary action against the judge who has been the subject of the complaint.

The 2008 Act provides a right for either the complainer or the judicial office holder who has been the subject of a complaint to refer the matter to the JCR to review the handling of the case to ensure that the set procedures have been followed. The JCR has no power to consider either the merits of any complaint or the disposal of the complaint: the role is limited to considering whether the appropriate procedures have been followed.

During the lead up to and passage of the 2008 Act, consideration was given to options regarding the role and functions of an independent reviewer as part of the scheme for dealing with complaints. For instance, consideration was given as to whether or not the Scottish Public Sector Ombudsman ought to be involved but this was rejected on the basis that conferring this function on the Ombudsman would not sit well with the constitutional position of the judiciary.An independent ombudsman, as there is in England and Wales (who also has functions in relation to the judicial appointments process), was also rejected. It was considered that given the relatively smaller number of likely complaints in Scotland the public expenditure involved in establishing and maintaining an independent ombudsman would be not justified. Parliament concluded that the powers in the 2008 Act were both appropriate and proportionate.

I consider that given the relatively short time the post of JCR has been in existence, and the modest number of reviews that have been handled in that time, it is premature to review the powers of the role. I am therefore not persuaded of the need for any change to the role or its functions at this moment in time.

As far as resources are concerned, the JCR was initially paid a daily rate for 3 days work per month. The terms and conditions of appointment provide that additional remuneration can be agreed if extra duties involve a greater commitment of time and, following representations from Ms Ali, we have recently increased payment to 4 days per month for the remainder of this calendar year. The JCR also receives funding for office and travel expenses, and for other larger expenses, including the cost of setting up her website. Premises within the Scottish Legal Complaints Commission’s offices were secured for the JCR to allow her access to all workplace essentials and some administrative staff support. However, Ms Ali elected to work from home. Having reviewed the matter, I consider that the current remuneration package is sufficient to enable the JCR to adequately perform her role.