Transparency, but not for Scottish Judges: First Minister echoes MacAskill’s claim of no need to review powers, independence of “Window Dressing” Judicial Complaints Reviewer role

First Minister's Questions – No need for review of powers for "window dressing" judicial watchdog. REPLYING to a question from John Wilson MSP (SNP) during First Minister’s Questions last week on matters relating to the investigation of  complaints about misconduct by Scottish judges, Scotland’s First Minister Alex Salmond  claimed in an answer given in the Scottish Parliament’s main chamber that there is currently no need to review the powers of the Judicial Complaints Reviewer (JCR).

The First Minister also refused to increase the power of the JCR to at least match that of equivalent judicial investigators in England & Wales who have wide ranging statutory powers to deal with complaints about judges in the rest of the UK.

The statement from Mr Salmond, who legal observers say effectively sidestepped revelations of multiple breaches of judicial conduct by Scottish judges, comes after Moi Ali, the first person to be appointed to the role by Justice Secretary Kenny MacAskill, officially described the role of JCR as “Window Dressing” during an evidence session before MSPs at the Scottish Parliament’s Public Petitions Committee who are investigating transparency within Scotland’s judiciary and failures of judges to declare their interests or recuse themselves in cases being heard in Scottish courts.

MSP John Wilson further asked the First Minister if the powers of the Judicial Complaints Reviewer could be “enhanced to give the role greater independence, especially given the equivalent powers and budgets in England and Wales and the role of the Northern Ireland Judicial Appointments Ombudsman”. However, in reply, the First Minister simply restated the current position of the Justice Secretary in that no review of the lack of powers held by the Judicial Complaints Reviewer or any move to grant the JCR greater independence is currently being considered.

Questions as put to the First Minister by John Wilson MSP and responses given:

First Ministers Questions, 30 January 2014: John Wilson MSP & Judicial Complaints Reviewer (Review)

Judicial Complaints Reviewer (Review)

John Wilson (Central Scotland) (SNP): 
3. To ask the First Minister when the Scottish Government last reviewed the powers of the office of the Judicial Complaints Reviewer. (S4F-01852)

The First Minister (Alex Salmond): Last year, the Cabinet Secretary for Justice said in evidence to, I think, the Public Petitions Committee that the Government does not see a need for a review of the office of the Judicial Complaints Reviewer at this time. The Judicial Complaints Reviewer has been in office since September 2011. She has told Mr MacAskill that she does not wish to be reappointed. We are grateful for her work to date and her commitment to assist with a smooth handover to her successor.

John Wilson: As the First Minister has done, I highlight the valuable contribution that Ms Ali has made in her role, especially in relation to the 20 cases that she has identified as breaches by the Judicial Office for Scotland in relation to the judiciary since 2011. Following Ms Ali’s decision not to seek a second term and her comments, which were reported at the weekend, could the powers of the Judicial Complaints Reviewer be enhanced to give the role greater independence, especially given the equivalent powers and budgets in England and Wales and the role of the Northern Ireland Judicial Appointments Ombudsman?

The First Minister: Let me put it on the record again that, like the member, I am grateful to Ms Ali for her valuable public service over the past two and a half years and for the improvements that she has encouraged in the judicial complaints process. The Judicial Complaints Reviewer carries out her responsibilities independently of Government and the judiciary. In her report for 2012-13, she records having to see 43 review requests and inquiries. By comparison, the Judicial Appointments and Conduct Ombudsman for England and Wales received 810 complaints and written inquiries, of which 482 concerned the personal conduct of judicial office-holders. The powers and the budget reflect that difference in the workload. There is not actually a process of independent review of judicial conduct complaints in Ireland. That is the current position. We are grateful to Ms Ali for her work and, in particular, for the commitment that she has given to smooth the handover to her successor.

JUDICIAL COMPLAINTS: How Scotland’s Judges look after their own in 2014 & beyond?

Contrary to claims made by Justice Secretary Kenny MacAskill and echoed last week by the First Minister during FMQ’s there is no need to review the lack of powers held by Scotland’s Judicial Complaints Reviewer, Moi Ali, the first person to hold the office of Judicial Complaints Reviewer recently told the Justice Secretary that she will not seek a second term in the role because she views her office as having such limited powers to render the JCR’s role as mere “tokenism” compared to how complaints against the judiciary are investigated in England and Wales, where the Office for Judicial Complaints has a complement of 15 staff and regularly publishes details of upheld complaints against judges.

Moi Ali testified before the Public Petitions Committee of the Scottish Parliament, providing revealing answers to questions about the powers of the Judicial Complaints Reviewer and her support for Petition PE1458: Register of Interests for members of Scotland's judiciary a public petition calling for a register of interests of Scotland’s judges. More on Moi Ali’s appearance before the Petitions Committee can be read 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

Footage of the Committee evidence session, which raises interesting points compared to the claims of Scotland’s Justice Secretary and now First Minister of no need to review the role of JCR , is available below:

JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests (Click image to view video)

A judicial watchdog without teeth, created after lobbying from angry judges with undeclared interests, secret wealth. The position of Judicial Complaints Reviewer was created by an Act of the Scottish Parliament in 2008, principally highlighted in Section 30, S31 and S32 of the Judiciary and Courts (Scotland) Act 2008. However, protests from vested interests within Scotland’s judiciary and legal profession from Scotland’s judges who were “dead against” proposals to create an independent form of regulation of judges resulted in what legal observers have branded “a cowardly capitulation” by Justice Minister MacAskill.

Ultimately, lobbying from Scotland’s unaccountable judges and other vested interests from justice system led to the creation of the toothless role of Judicial Complaints Reviewer which, unlike its equivalent office in England & Wales, has no statutory powers, only works on a three days a month basis and with an annual budget of £2000 and has no staff. The JCR has been frequently frozen out of document sharing by Scotland’s judiciary as the media have recently reported in detail along with information obtained from annual reports released by Moi Ali, the current Judicial Complaints Reviewer.

First Annual Report of JCR for 2011-2012 revealed Scotland’s top judge froze out independent Judicial Investigator. To illustrate what has become a consistent lack of cooperate from the judicial office, the first annual report from Moi Ali last year reiterated concerns over refusals by judges  to share information  with investigators, previously reported in February by the Sunday Mail newspaper and featured on Diary of Injustice here: Annual Report revealed Lord President Lord Gill ‘froze out’ Judicial Complaints Reviewer amid series of revoked findings, secret unshared memos & dismissed complaints.

Ms Ali’s first annual report, which can be read online here : Judicial Complaints Reviewer Annual report 20011- 2012 or available via the JCR’s website HERE reveals a series of incidents where her office has been blocked by the Lord President from accessing communications, internal memos and reports between the office and the judges about complaints.

In one particular case, Ms Ali revealed in her report “When the Judicial Office made an initial assessment of this complaint, it was not reasonable for them to conclude that the behaviour complained about, which left the complainer “insecure and scared”, fell into the category of judicial decision/case management/court programming. According to the Rules, they should have referred that element of the complaint to the disciplinary judge for consideration. This did not happen, and instead the complaint, in its entirety, was dismissed. For that reason I made a referral to the Lord President, who then revoked that part of the original determination and referred it to the disciplinary judge, who then dismissed the complaint.”

Second annual report - JCR lacks much needed powers. The Judicial Complaints Reviewer’s 2012-2013 annual report revealed continuing issues of concern and further instances where the Judicial Office has refused to share files and paperwork in relation to complaints made against judges and how were handled.

The report also makes reference to incidents such as where Scotland’s top judge Lord Brian Gill refused to hand over information to the JCR. Gill claimed Moi Ali’s office was a "Third Party" and that data cannot be shared with her office for reasons of confidentiality. However, the confidentiality concerns of Gill appear to be restricted to Scotland, as the same information in England & Wales is published online.

It also emerged in the JCR’s second annual report that even though a Memorandum of Understanding was signed between the JCR & Judicial Office earlier this year on respective roles, responsibilities and agreed undertakings, the situation regarding the contents of files has not been resolved to Ms Ali’s satisfaction.

The Sunday Mail newspaper reported on issues raised in the JCR’s second annual report, including calls from Moi Ali for the Scottish Government to act over the lack of scrutiny and transparency in Scotland’s judiciary.More can be read here: Calls for Justice Secretary to get tough with anti-transparency judges as Judicial Investigator reveals weak-by-design scrutiny fails to protect public from errant judges