CLOSED ENCOUNTER OF THE JUDICIAL KIND: Private meeting with msps, top judge over judicial interests petition raises fears judiciary are dodging official remit of Holyrood committee

Petitions Committee issue latest report on judicial interests petition as top judge circles Holyrood. THE OFFICIAL REPORT from the Scottish Parliament on last week’s debate regarding Petition PE1458: Register of Interests for members of Scotland's judiciary has now been published, including the verbal account of the private meeting between the Lord President Lord Brian Gill and Petitions Committee Convener David Stewart MSP & Deputy Convener Chic Brodie MSP.

In the verbal account of the private meeting to the remainder of the Petitions Committee, now published along with video footage of the debate, there is curiously no mention or any reference whatsoever as to the location of, or under what circumstances or conditions the private meeting between the judge and the msps took place.

However, it has now been revealed by clerks to the Petitions Committee that the private meeting between Lord Gill and the Convener & Deputy did in fact take place in a room ‘somewhere’ inside the Scottish Parliament. This information was not made public prior to the meeting taking place, nor was it referred to during last week’s briefing at the full Petitions Committee.

As this unidentified room was obviously not subject to the normal rules governing how those in attendance would be expected to reply to questions from an official Committee of the Scottish Parliament, there is now a debate about what actually transpired at the meeting, what was noted, what has been gained, if anything.

As no written notes of the private meeting with the judge were circulated to the remaining members of the Committee in advance of last Tuesday’s Public Petitions Committee meeting, the Convener & Deputy Convener gave a verbal account of what was said between Lord Gill and the two msps.

After listening to the Convener & Deputy Convener, John Wilson MSP then asked the Convener if any notes of what was discussed were going to be placed on the official record of the Committee. Replying to Mr Wilson, the Convener, David Stewart said there were notes taken but that “It was not an official meeting of the committee so we do not have an  Official Report.” The Convener went on to inform Mr Wilson a record of the private meeting would be provided.

Mr Wilson went on to raise issues regarding Lord Gill’s refusal to face the full Petitions Committee in session and give evidence, insisting there be something put on the official record saying “We can then satisfy future petitioners that we will not be in a position to hold private discussions with individuals when we ask for evidence from them that could basically lead to them avoiding putting something in the  Official Report.”

Jackson Carlaw MSP also pointed out that had it not been for tenacity of this committee so far, there would be no letter forthcoming from the Lord President.

Since last week’s Petition Committee deliberations, Clerks to the Petitions Committee have now confirmed some notes of the private meeting between Lord Gill and the MSPs were taken during the meeting, and these notes are to be published at a later date, along with being added to the Committee’s official record.

Petitions Committee Meeting 28 January 2014 (Click to view video footage)

Official on Petition 1458 Register of Interests for Scottish Judges (Register of Interests) (PE1458)

The Convener (David Stewart):  The fourth current petition is PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. Members have a note by the clerk.

Members will recall that it was decided that the petition should be considered again once Chic Brodie and I had met the Lord President. We had a useful meeting with Lord Gill last week and we discussed what the petition is calling for and the current procedure for members of the judiciary to recuse themselves. Lord Gill confirmed that a recusal in a case is noted in the minute of court proceedings, which is part of the formal court process, but no central aggregate records of individual recusals are kept. That means that  it would be virtually impossible for an ordinary member of the public to detect how many recusals there have been across Scotland at any particular time or whether any individual sheriff or judge has recused him or herself.

Lord Gill explained in more detail why he feels that a register of judicial interests would not be workable. The principal reason is that a judge cannot predict what might arise in each and every court case that might come before them. In any event, the petition seeks a register of pecuniary interests, and such a register would not address some of the concerns raised by the petitioner such as the concern about undeclared family relationships.

However, following a suggestion from me and Chic Brodie, Lord Gill has undertaken to check with the courts administration to see whether the information technology systems can be adapted to provide aggregate information about recusals, and he has undertaken to write to me on that in the next couple of weeks. Clearly, we are still awaiting that response. However, if it is possible to organise that information as suggested, it will mean that ordinary individuals with an interest will be able to find out how many recusals there have been across Scotland and by which sheriffs or judges.

My personal view is  that, although that step does not include accepting the petition, it is practical and it moves things in the right direction. I am merely reporting that to the committee. Chic Brodie may wish to add some comments.

Chic Brodie: It was a reasonable meeting.  The Lord President also drew to our attention the fact that members of the board of administration of the Scottish Court Service have to register their interests. Therefore, unbeknown to us, their interests were already in the public domain. I think that  the letter will include a wider understanding of that and that he will talk to his colleagues about expanding that.

The Convener:  That is true. Just so that members are totally in the loop, I add that only a small number of judges are involved in this, but the procedure that Lord Gill is going to look at has some merit.

My suggestion to the committee is that we wait until we get the full letter from the Lord President, which—to pick up on Jackson Carlaw’s point—will not be forever; it will be in the next couple of weeks. We will then be able to look at the issue in full. I have just summarised my account of the meeting, but I would like to see the Lord President’s view.

Jackson Carlaw: I only observe that, but for the belligerence of the committee in pursuing the issue, no letter would be forthcoming and there would be no investigation, explanation or other actions arising from it. That rather vindicates the tenacity with which we have pursued the matter.

John Wilson: Convener, was any kind of record kept of  the meeting that took place between Lord Gill, you and the deputy convener? Were minutes taken?

The Convener: The clerk was present and took notes in the meeting. It was not an official meeting of the committee so we do not have an  Official Report  of it, but if you want an account of the meeting we can certainly provide it.

John Wilson: It is just that one issue that arose was that Lord Gill refused to come to the committee and give evidence, and the compromise position was that the convener and the deputy  convener would meet him. In the interests of natural justice, I want us to have something, as a committee, that we can put on the record to declare what took place at that meeting.

We can then satisfy future petitioners that we will not be in a position to hold private discussions with individuals when we ask for evidence from them that could basically lead to them avoiding putting something in the  Official Report. That has been my position all along on this debate with Lord Gill—that we required something  to be put in the Official Report.

I welcome the fact that Lord Gill is going to write to the committee with a fuller, more detailed explanation of what actually happens in the judiciary in terms of recusals and the declarations of interest. We have moved forward slightly, but there is still an issue about Lord Gill’s refusal to come to give evidence to the committee.

The Convener:  There is no difficulty about providing an account of the meeting. I informed Lord Gill at the start of the meeting that we would be making a summary of the key points. I wanted him to be clear before he said anything that that was the nature of the meeting.

As committee members know, Chic Brodie and I met Lord Gill with the committee’s agreement. We did not meet him in a secret way. I do not want to reopen the debate at this stage, but members will also be aware of the issue that Chic Brodie raised—that, under the Scotland Act 1998, we do not have the power to summon a judge or a sheriff to appear before us. Members will note from the Justice Committee that, if a judge, a sheriff or indeed the Lord President wishes to attend a committee voluntarily, he or she is able to do that.

Chic Brodie was very thorough in pursuing that point with the Lord President. I will make sure that that note is contained in the papers for the next meeting. In a sense, we are putting on the record what happened.

Chic Brodie:  I was going to make that point. Under section 23(7) of the Scotland Act 1998, judges and leaders of tribunals—funnily enough—are not compelled to appear before committees or to provide documents. I find that wholly unsatisfactory and I believe that it is a flaw in the act. I have looked at the evidence and the parliamentary report that was produced in—I think—1998, and the argument for that seems to have disappeared in the mists of legal jargon. In fact, there was hardly any debate on the issue. Prior to the creation of the Supreme Court, judges were required to register their interests, but all of a sudden it transpired that they were not required to do that, and that happened without much debate.

We need to ask what happened and why that decision was made. However, that is an on-going issue and not one for the committee to pursue at this stage. All in all, the meeting with the Lord President was fairly favourable, and I thank the committee for allowing me to participate in it.

The Convener:  Do members agree that we should await the Lord President’s letter and discuss what course of action to take once we have it in front of us? Members indicated agreement.

The Convener:  I thank members for their contributions, and I thank Chic Brodie for coming with me to the meeting with the Lord President.

The day before the Public Petitions Committee met, it was reported on Diary of Injustice that limited declarations of interest by Scotland’s top judge and only six other members of Scotland’s vast, sprawling ranks of a multi million pound well salaried & well pensioned judiciary were published in the 2012-2013 Annual Report of the Scottish Court Service, a fact which Lord Gill omitted to tell MSPs in three ‘stonewalling’ letters of protest against the petition which the Lord President sent to msps last year.

From the Petitions Committee’s own records, it transpires MSPs were actually informed of Lord Gill’s limited declaration in the SCS annual report during November 2013 by the petitioner, and a submission was published by the Scottish Parliament’s own website at that time, available here: PE1458/T: Petitioner Letter of 14 November 2013 (9KB pdf)

However, during Tuesday’s meeting earlier this week, an account given by the Deputy Convener to Committee members appeared to suggest the declarations by Lord Gill had come as a revelation from the Lord President himself during the private meeting which occurred only two weeks ago. The different take on events has lead some to feel Lord Gill is choosing a divide and conquer approach to how he responds to questions asked in private meetings, compared to questions raised by the Petitions Committee in published letters.

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

Petition PE1458: Register of Interests for members of Scotland's judiciary is due to be heard again at the Scottish Parliament in some weeks time after a letter has been received from the Lord President, who is apparently still refusing to attend the Scottish Parliament and face open questions from all Committee members regarding judges hidden undeclared interests.