Friday, March 07, 2014

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

23 comments:

Anonymous said...

Legislation can be passed by Parliaments but at the end of the day a human has to act for enforcement to happen. And the lawyers control that enforcement. If the same applied to the public criminals would love it because the Police if they acted like Scottish Lawyers would not enforce the law.

Anonymous said...

Watched your clip and read what you have posted.

So who is working overtime to see this is not reported by the BBC etc?

It strikes me as very odd there should be such a debate on judges going on and there is absolutely no reference to it either way by the nation's broadcaster and publicly funded at that.

Anonymous said...

John Wilson is very good on this register of interests I think the whole committee should be calling for this and getting more people in to speak about it.

At the start of the meeting they said the petitioner asked for the Scottish Court Service to be called.Why did they not do this if the courts already have a register for their own employees and the judges are exempt.Is this not unfair anyway and should be talked about in public if Gill is also the boss of them too?

Anonymous said...

The judges and their pals in politics will be trying to make sure you dont get this debate.
Stand by for a blockade of Holyrood by judges waving posters "NO INTERESTS TRUST US OR ELSE!"

Anonymous said...

That letter is from "Scotland's top judge"?

He must be having a laugh.

Anyone else notice the April 1st date as in April Fools?



Anonymous said...

"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."

Ouch! Presumably their opposition to your petition is because all this information will cast the judiciary in a less than favourable light (as in corrupt)

Good work mate.I like where you are coming from!Go right for the jugular!

Anonymous said...

Does anyone feel that letter from Gill looks errr.. waffle?considering all these threatening letters he sent to msps?

Anonymous said...

It seems to me the judge is trying to sway your politicians with this small offer of just the recusals and not really any information on what is going on with their interests.This is a trap.You have a good grasp of this in your own response and the Judicial Complaints Reviewer has seen right through the judge and the recusal thing.

It is a good debate you are having but is it not time to legislate after all that is coming out about these judges?

Anonymous said...

If this is to be debated in Parliament will Salmond and MacAskill jump to Lord Gill's tune?

How entertaining it will be if there is anyone stupid enough to stand up and defend the secrets of a judiciary who are anti transparency and anti parliament!


Anonymous said...

Have been enjoying this debate of yours for awhile now and suffice to say from what you have wrote and what has come out of this commmitee it should be made law everywhere for judges to declare all their interests not just in Scotland.

Diary of Injustice said...

@ 7 March 2014 17:58

It would have been productive to have the SCS attend the PPC to talk about their own register of interests, particularly as the SCS falls under the remit of the SCS Board which is chaired by Lord Gill hilself, however there is a live media investigation going on into the SCS interests and certain scandals ...which will feature in an upcoming report ...

@ 7 March 2014 18:40

If judges had the temerity to stand outside Parliament waving posters with something like 'Axe transparency first' it would be a great story to write along with any video footage ...

@ 7 March 2014 22:24

When the piper plays, the clan must dance ...

@ 8 March 2014 11:31

A good point.Yes .. any person serving in a judicial capacity should be required to declare their full interests with no excuses and no convenient rules written by themselves to allow discretionary declarations.

Anonymous said...

Anonymous said...
That letter is from "Scotland's top judge"?

He must be having a laugh.

Anyone else notice the April 1st date as in April Fools?




7 March 2014 19:20
----------------------------

In plain sight?

Anonymous said...

Anonymous said...
It seems to me the judge is trying to sway your politicians with this small offer of just the recusals and not really any information on what is going on with their interests.This is a trap.You have a good grasp of this in your own response and the Judicial Complaints Reviewer has seen right through the judge and the recusal thing.

It is a good debate you are having but is it not time to legislate after all that is coming out about these judges?

7 March 2014 22:05
£££££££££££££££££££££

If it was so easy to tweek the system to produce data on the number of Recusals, then why the hell was this not being done already?

It is inconceivable that they hadn't thought about this or they hadn't thought that this would be required?

They are taking the pure pish out of the Scottish People here?

They don't want to prise their arms away from their 'precious' because they like the way the system is at the moment; a slack-run con operation which is only there to serve Scottish lawyers and allow them to slurp up the gravy to the expense of everyone else?

Anonymous said...

Gill and the judicial pensioner crowd wont be standing outside parly with those banners.He has already tipped his hand on how he prefers debate - Private meeting with a couple of committee members to split them up from the rest as you said earlier yourself and look what it did to the committee.No matter who says what that private meeting affair was wrong and we all know it.

Anonymous said...

How poor of your chief justice to resort to a private meet in an attempt to shut down your debate.Anyway you seem to have done very well on this register project to get to this stage.

From your clip it sounds like you may get you register in some form.If so I think you should be recognised for this.

In some countries you would be snapped up as a journalist for this kind of achievement.

Anonymous said...

All this talk from Gill about recusals seems to be a diversion from the more detailed register of interests in your petition so make sure the committee dont lose sight of that in any rush to please the judge.

Anonymous said...

What I want to know is why the hell no record of recusals was already in place?

What are the excuses for not having this vital information recorded?

Did this Petition bring it to their attention?

Did they collectively never think of this before?

Either they are incompetent or this is deliberate obtuseness, where they pretend to be the daft laddie and say that this was contrived in all innocence?

This shows the utter contempt they show to the Scottish People and that they treat us as their enemy?


What I want to know is how many Scottish Judges and Sheriffs have wilfully not recused themselves, when they should have done?

Me thinks this would be a folders worth of sheets of paper?

Diary of Injustice said...

Several comments have not been published because they do not conform to the rules set out enabling debate.Those authors are reminded of the rules for accepting comments.

In relation to two unpublished comments identifying two members of the judiciary and court cases could the authors email DOI via scottishlawreporters@gmail.com with further details.

In response to enquiries regarding the data on recusals, the Scottish Parliament's Public Petitions Committee made several requests of Lord Gill to provide such data in the past.The Lord President supplied no such data to the Petitions Committee in relation to these requests and it is doubtful any such data on recusals currently exists, for obvious reasons.

Anonymous said...

Well done.Hopefully someone at Westminster will pick up on this and begin the same debate there because whatever affects Scotland's judiciary in this interests register plan of yours should also be applied to the English judges.

Keep up the good work.

Anonymous said...

A very interesting debate at the Scottish Parliament on these judges.Obviously we do need a register and the sooner the better!

Anonymous said...

Great public service journalism by the DOI journalists.

Where would we be without you?

We would be up shit creek in our banana boat in our little banana republic masquerading as a sewer.

Anonymous said...

Interesting about the recusals offer.

Is this going to cover cases already heard or only after April 1st?

The offer is still very weak considering the terms of your petition.

Anonymous said...

Anonymous said...
Interesting about the recusals offer.

Is this going to cover cases already heard or only after April 1st?

The offer is still very weak considering the terms of your petition.

12 March 2014 01:06
xxxxxxxxxxxxxxxxxxxxx

The offer is a con?

A phoney bone of contention if ever you saw one?

We need to have Judges & Sheriffs properly recusing themselves and a transparent and independent system whereby a party can report a Sheriff or Judge for not recusing themselves and if they have failed to recuse themselves they should have the book thrown at them because if they have abused their position of authority, then it must be deception or dishonesty and so, they should not be allowed to continue because of the risk of them doing it again in the future?

That is unless the SSDT are assessing things, whereby dishonesty and deceptiveness can be viewed as a positive virtue if they get their man off?