RECUSE ME NOT: Concession from Scotland’s top judge on recusals is “of limited value” says Judicial Complaints Reviewer as MSPs seek Register of Judicial Interests debate in Holyrood main chamber

Petitions Committee calls for full debate at Holyrood on judicial interests transparency register. MEMBERS of the Scottish Parliament’s Public Petitions Committee earlier this week agreed to seek a full debate in Holyrood’s main chamber to discuss issues of judicial transparency raised in Petition PE1458: Register of Interests for members of Scotland's judiciary. The move comes after msps appeared unhappy with a year of refusals from Scotland’s top judge to cooperate with the Scottish Parliament Committee which has been considering transparency proposals to create a full register of the secret undeclared interests of Scotland’s judiciary.

The latest development in the long running debate on judicial interests, amid the obstructive swish of judicial ermine and legal sabre rattling from Lord Brian Gill against msps efforts to get answers out of the anti-transparency top judge comes after Scotland’s top judge recently wrote to the Petitions Committee offering a tiny concession on the collection of recusal data only.

However, no offer was made by the judge on disclosing other interests such as vast 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 – issues which the judiciary and Lord Gill are vehemently opposed to publishing in any open and presentable format for public view.

MSPs debated the petition including the letter from the Lord President, and further responses from the Judicial Complaints Reviewer and the petitioner, who both continue to call for a full register of judicial interests. Video footage of the Petitions Committee consideration of Petition 1458 on Tuesday 4 March 2014:

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

Lord Gill’s offer contained in a short letter to msps that his officials had devised a way to collect recusal data of judges in cases where conflicts of interest arise was widely debated. However, as members discussed Lord Gill’s offer on recusals, John Wilson MSP said it would still be down to a judge or sheriff to decide to recuse themselves, and without a full register of interest, how would anyone dealing with the courts understand or realise when a judge has to recuse themselves.

Short note from top judge gives little on transparency. Lord Gill stated to msps in the brief letter: “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 reason  for  recusal  will be provided. The  fact of recusal and the reason  for  it  will appear  on the Judiciary of Scotland website. I intend to commence the  collection of information from  1 April  2014 to  give  time for  the administrative  arrangements  to  be put in  place.  The  website  will be updated  as  notification of recusal is  received.”

The concession on recusals by Lord Gill is widely seen as having little value without a full register of interests to accompany it, and comes after the judge spent a year refusing to cooperate with msps looking for answers on the secret world of Scottish judges. Lord Gill also refused at least two invitations from the Petitions Committee to attend evidence sessions and face questions in public from the full Committee. At one point Gill even used loopholes in the Scotland Act to dodge parliamentary scrutiny with an implication judicial cooperation with Holyrood may be withdrawn over the issue.

While a welcome move, the offer by the Lord President does not tackle any of the core issue of calls for greater judicial transparency with the creation of a full register of interests for Scotland’s judiciary - a plan the top judge angrily branded ‘unworkable’, reported earlier 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

And, while Lord Gill continues to call a register of judicial interests ‘unworkable’, papers from the Petitions Committee show that it was earlier revealed to msps the entire Scottish Court Service staff who work in the courts and are headed by a board with Lord Gill himself as its Chair, has maintained its own very much workable SCS register of staff interests & hospitality for years.

Judicial Complaints Reviewer wrote to msps expressing view on recusals only data. In a letter to the Petitions Committee, Moi Ali, Scotland’s Judicial Complaints Reviewer said the Lord President’s proposal was “of limited value” The Judicial Complaints Reviewer told MSPs: “As I understand it, the Lord President's proposal is simply to publish recusal information, but what about the occasions where a judicial office holder is unwilling to recuse despite being challenged to do so? Will such cases be reported upon publicly?”

“Since I gave my evidence to the committee last year, I have reviewed further cases in which conflicts of interest have been at the heart of the complaint. The recusal information the Lord President intends to publish will not help in situations where an alleged conflict of interest only comes to light after a court case is heard. The publication of a register of interest could actually avert the need for such complaints by enabling participants in a court case to challenge perceived conflicts of interest in advance or at the time, rather than after the case is heard. Without the publication of a register of interests, the publication of recusal data, while welcome, is of limited value.”

“If the issue were solely one of providing public access to recusal data, the Lord President's proposals would be of value. However, the issue from my perspective –as the only individual in Scotland who deals with judicial complaints reviews –is that the concern raised by complainers is failure to recuse; they do not complain about a dearth of recusal data.”

“It might be helpful if I outlined a typical scenario to help you see how the publication of recusal data alone will fail to address the concerns that those using my service report. Let us say that a defendant appears in court and the case is heard. Later the defendant discovers a potential conflict of interest and makes a complaint about the judge’s conduct. In my experience it is likely that the complaint will be dismissed as being about ‘judicial decision’(a decision that it is for a judge to make). Even if it proceeds to investigation –and most cases that reach me do not get this far –that investigation will be undertaken by a fellow judge.”

“Should the complainer ask me to undertake a review, my hands are tied because all I can do is check that the complaints handling rules were followed. The rules say that a judge can investigate a complaint in whatever way they wish, so there are severely limited grounds on which I can challenge an investigation. Even if I believe that the wrong decision was reached, I cannot overturn that decision or even ask for it to be reinvestigated. Were there to be a register of judicial interests, individuals would be armed with the information to seek a judge’s recusal if necessary, and would not be left having to deal with the matter after the event using the complaints system. This would be in everyone’s interests.”

Lord Gill’s concession on recusals falls far short of register of interests – petitioner. And responding to Lord Gill’s meagre concession, a submission from the petitioner to MSPs stated: “While the Lord President's move to enable the collection and publication of recusal data is a welcome step in the right direction,  and could have been achieved earlier,this falls far short of the requirements of registers of interests which operate in other walks of public life & Government.”

The petitioner continued: “It is an important point to make that  many recusal requests are either refused or not even raised in court due to  the lack of current information on judges interests or the case where legal representatives refuse to raise a recusal issue with the judge, even when asked to do so by their client. Therefore the Lord President's move to publish recusal data in the currently proposed format, will not be a true indicator of how recusals are dealt with, currently, or historically in the Scottish courts.”

The developments earlier this week, seen as a step in the right direction, come after Lord Gill held a controversial private meeting with two msps from the Petitions Committee in place of appearing before the full complement of MSPs to face questions in public about judges’ hidden interests and their opposition to full disclosure. The private meeting was reported earlier, here: 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

After debating the responses, and hearing from its members, the Public Petitions Committee agreed to seek time in the Chamber for a debate on the petition. The Committee also agreed to write to the Lord President and the Scottish Government. The full transcript of the meeting will be published in the next few days and made available on Diary of Injustice.

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