Judicial Interests & Accountability: ‘What we expect of the judiciary in Scotland and how accountable it is in the public’s eyes, not the eyes of a self serving group of judicial appointees’

Are judges accountable? The lack of judicial interests register gives cause for concern. THE most senior members of Scotland’s judiciary appear to be more concerned with how accountable they are to each other, rather than how accountable they are to the public. The entire issue of judicial accountability in Scotland, and the lack of it has come to the fore during evidence heard  by MSPs of the Scottish Parliament’s Public Petitions Committee who are considering Petition PE1458: Register of Interests for members of Scotland's judiciary.

Petition PE1458, raised by law journalist Peter Cherbi calls for a published register of interests documenting full disclosure of judges sizeable financial wealth, hidden family & business connections within the legal profession and controversial topics such as directorships, secret earnings from law firms & big business, criminal records of judges, and offshore ‘tax efficient’ trusts and investments which currently remain secret.

Over the course of the last year, MSPs have heard evidence from Moi Ali, Scotland’s Judicial Complaints Reviewer (JCR), on how the judiciary deal with complaints. The JCR also expressed her support for the petition and said a register of interests would enhance public confidence in the judiciary, reported previously 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

However, MSPs have encountered a brick wall at the hands of Scotland’s top judge the Lord President, Lord Brian Gill - who is overtly hostile against the transparency proposal. Lord Gill has also refused to appear before MSPs and face questions in public or provide answers to the Scottish Parliament’s investigation of the effect a lack of judicial declarations of interest on the justice system.

Private meeting with judge underlined judicial opposition to declarations of interests. Only recently after a private meeting with the Lord President and two MSPs from the Petitions Committee was an offer to publish limited data on judicial recusals. The notes of the private meeting between the judge and two senior politicians also underlined the Lord President’s continued opposition to any further transparency in the form of a register of interests for Scotland’s judiciary.

The clerk’s notes of the meeting indicated Lord Gill went so far to claim that a register of judicial interests was not workable, reported here: Judicial Transparency is “not workable” claims Scotland’s top judge Brian Gill in private meeting with Holyrood msps on register of judicial interests petition

However, the Lord President’s “unworkable” myth has little evidence in fact, considering the Scottish Court Service has operated a register of interests for its own staff for several years, as does Scotland's Crown Office & Procurator Fiscal Service.

Also contained in the Committee Clerk’s notes of the recent private meeting at Holyrood between the judge and politicians, Lord Gill made the point he had full confidence in his colleagues.

However, at last week’s meeting Petitions Committee member John Wilson MSP pointed out that without a register of interests it would be difficult for members of the public to deal with issues of conflict of interest within the judiciary.

Commenting on Lord Gill’s short letter to the Petitions Committee, offering uncertain detail on recusals only, Mr Wilson said: “The difficulty is that, as far as I understand, it is still down to a judge or a sheriff to decide whether to recuse. Without a register of interests, how would anyone dealing with the courts understand or realise when a judge should recuse? Without any evidence or a register of interests to say otherwise, judges and sheriffs can continue to hear whichever case they want to hear and recuse when they decide to do so.”

“The petition clearly indicates that a judge or sheriff might have financial interests relating to shareholdings in a company or they might hold a company directorship, and that might be directly relevant to a case. Unless there is a register that clearly shows the financial interests of judges and sheriffs and their families, it is difficult for an ordinary member of the public to understand the relationships that judges or sheriffs might have.”

Commenting further on the Lord President’s position regarding his colleagues in the judiciary, Mr Wilson said: “Most importantly, Lord Gill talks about confidence in the judiciary. The committee is here to look at the confidence that the public has in the judicial system in Scotland. That should underlie our investigations into the issue.”

“I welcome Jackson Carlaw’s suggestion that we try to get a chamber debate on the issue, but there are things regarding the petition that we need to examine further, particularly in light of the responses that we have had. We need to get assurances from Lord Gill and the Scottish Government that we can move forward in relation to what we expect of the judiciary in Scotland and how accountable it is in the public’s eyes—not the eyes of a self-serving group of judicial appointees.”

Last week’s Petitions Committee discussion of Petition PE1458 concluded with a proposal for further enquires of Lord Gill. Members also agreed to seek a full debate on the petition in Holyrood’s main chamber which may come after the Summer recess.

The Scottish Parliament have now published the official report of last week’s debate. Therefore, in keeping with maintaining an accurate and publicly accessible record of the debate in Scotland on judicial interests, the full report is reprinted on Diary of Injustice today with accompanying video footage of the parliamentary committee debate.

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

Petition PE1458: Register of Interests for members of Scotland's judiciary

The Convener:  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, which is paper 4. We also have the clerk’s note of the meeting between the Lord President, Chic Brodie and me, and we have the submissions.

I will make a couple of points before we debate the petition. The petitioner suggests that we call the Scottish Court Service to give evidence on its existing staff register of interests. Moi Ali, the Judicial Complaints Reviewer, has provided an interesting additional paper in which she makes the powerful point that the issue is the“failure to recuse” and “not ... a dearth of recusal data.”

Her letter is direct and straightforward and she pulls no punches about the issue. The committee might wish to write again to Lord Gill to ask whether he considers that a record of declarations of interests, similar to that for several members of the judiciary in the SCS annual report, could be set up for other judges and sheriffs.

Members will know that only a handful of them are involved in the SCS board; a much greater number are not members of that board, so they are not required to declare interests. Those are key points for the committee. I throw the discussion open to members.

Chic Brodie:  I think that I missed something that happened early on in the process and before I became a member of the committee. The petition calls for a register of pecuniary interests of judges, and I do not know where the recusal bit came in.

On the conversations that we had with Lord Gill, I see from my notes that a request was made regarding the financial interests information that is available via the SCS on three members of the SCS board although, in fact, it turns out that there are seven judicial members of the SCS board. I know that it is difficult, but I still think that it might be worth while trying to keep the issue of financial interests separate from the issue of the declaration of a potential conflict of interest.

We might return to the latter at some stage in the future, but we might want to expand on the information that is already available via the SCS on the financial interests of the judiciary.

The Convener:  If I understand the Judicial Complaints Reviewer’s letter, the crucial issue is recusal before a case. For example, if a judge was dealing with a case in which he or she had some financial interest, they would recuse before it. So, it is about the ability to recuse over a financial issue, which I think is the point that Moi Ali is making.

Jackson Carlaw:  I find no fault in the way in which we have conducted ourselves on the issue. I read the letter from Moi Ali with a great deal of interest.

If it were  possible to divide up the time appropriately, I suggest that we should take the subject to the chamber as part of a Public Petitions Committee debate. It would be useful to go beyond the bounds of the committee to allow some of the issues to be stated more  widely in the chamber and for the Cabinet Secretary for Justice to have to respond formally to some of the issues that have arisen.

Although we have moved matters forward in a limited way by the nature of the discussions that we have had, frankly, I do not think that any of us is wholly satisfied with the outcome or totally persuaded by the case that has been made to us.

The Convener:  That is a useful point. I inform the committee that, at the Conveners Group, we put in a bid for a debate on organ donation. That has been agreed, but we are fine tuning whether it will be in April or May. However, any further bids for debates would just join the queue at the Conveners Group. There is always a healthy interest in bids for committee plenary debates. I think that such debates are a useful opportunity. My view is that this petition would be a good subject for a plenary debate. It might have to be after the summer recess but, whenever there is a slot, the committee can be assured that I will argue for it at the Conveners Group.

Jackson Carlaw:  It would be a useful subject for us to take to the chamber. As matters stand, we have probably got as far as we are likely to get with the issue. As I said, I do not think that we are entirely satisfied with the outcome at which we have arrived. It would be useful for us to make that clear and to allow the issue to have a wider profile.

Chic Brodie:  In general, I agree with Jackson Carlaw. I do not think that there was any intended obfuscation when we met the Lord President, but there was the conflation of pecuniary interests with recusals on the basis of family relationships. It is argued that judges do not know whether someone whom they know will come up in a case. If we can separate those issues, I still think that there might be a requirement to focus on the half-commitment that we have on the information that is available through the SCS board on pecuniary interests. After that, we can look at how we might deal with other complaints.

The Convener:  Thank you for that. Do members agree to that course of action?

John Wilson:  The discussion has been useful. One or two members referred to Moi Ali’s timely response to the committee in relation to the issues that have been raised about publishing information on a judge or sheriff recusing himself or herself from hearing a case.

The second paragraph of the Lord President’s letter states: “I am pleased to say that my officials have devised a means by which this can be achieved. Court Clerks will inform the Judicial Office for Scotland when a judge or sheriff has to recuse.”

The difficulty is that, as far as I understand, it is still down to a judge or a sheriff to decide whether to recuse. Without a register of interests, how would anyone dealing with the courts understand or realise when a judge should recuse?

Without any evidence or a register of interests to say otherwise, judges and sheriffs can continue to hear whichever case they want to hear and recuse when they decide to do so.

The petition clearly indicates that a judge or sheriff might have financial interests relating to shareholdings in a company or they might hold a company directorship, and that might be directly relevant to a case. Unless there is a register that clearly shows the financial interests of judges and sheriffs and their families, it is difficult for an ordinary member of the public to understand the relationships that judges or sheriffs might have.

Most importantly, Lord Gill talks about confidence in the judiciary. The committee is here to look at the confidence that the public has in the judicial system in Scotland. That should underlie our investigations into the issue.

I welcome Jackson Carlaw’s suggestion that we try to get a chamber debate on the issue, but there are things regarding the petition that  we need to examine further, particularly in light of the responses that we have had. We need to get assurances from Lord Gill and the Scottish Government that we can move forward in relation to what we expect of the judiciary in Scotland and how accountable it is in the public’s eyes—not the eyes of a self-serving group of judicial appointees.

The Convener:  I thank John Wilson for his comments. He is right to go back to the fundamentals and what the petition is calling for. The register of pecuniary interests is key.

It sounds as though the committee is enthusiastic about bidding for a plenary debate. If that is agreed by members, we will make appropriate urgent requests to get that in the queue for a future meeting. Do members also agree that we write to Lord Gill to clarify whether he would consider setting up a record of declarations of pecuniary interests, similar to the one that already exists for several members of the judiciary?

Members indicated agreement.

The Convener:  Do we need to cover any other points?

John Wilson:  I suggest that we write to the Scottish Government to ask for its views on the exchanges that have taken place between the committee and those who have provided evidence to us and whether, based on the information that we have, it would consider reviewing its decision not to engage in the process.

The Convener:  That is a fair point. Do members agree to do that?

Members indicated agreement.

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