Register of judicial interests 'good for judiciary and good for public' says Judicial Complaints Reviewer in written evidence to Scottish Parliament Public Petitions Committee

Judicial Complaints Reviewer Moi Ali supports register of judicial interests. MSPs who are currently investigating proposals to create a register of interests for Scotland’s “incredibly powerful”, yet highly secretive judges contained in Petition PE1458: Register of Interests for members of Scotland's judiciary, have considered further submissions of evidence this week from Moi Ali, Scotland’s independent Judicial Complaints Reviewer (JCR) whose function is to review the way in which judge handle complaints against their own colleagues.

Writing in a letter to members of the Scottish Parliament’s Public Petitions Committee, Moi Ali, first Scotland’s Judicial Complaints Reviewer reiterated her strong support for the creation of a register of interests for Scotland’s judges, telling msps “a register of interests is good for the judiciary and good for the public”.

Moi Ali said: “Given the position of power held by the judiciary, it is essential not only that they have absolute integrity but crucially, that they are seen to have absolute integrity. Again, a register of interests is a way of demonstrating that a judicial office holder is impartial and has no vested interest in a case –financially, through family connections, club/society membership or in any other way. Conversely, the refusal to institute a register of interests creates suspicion that in turn undermines judicial credibility. So once more, a register of interests is good for the judiciary and good for the public.”

And, responding to claims from Cabinet Secretary for Justice Kenny MacAskill that a register of judicial interests was not needed due to “safeguards” put in place by MacAskill in consultation with the same judges who now oppose a register of interests, the Judicial Complaints Reviewer told msps: “As the person appointed by the Cabinet Secretary to review complaints handled under these rules, I can say from experience over nearly three years that the rules are not fit for purpose.”

MSPs were also given a copy of the JCR’s response to a consultation on revising the rules governing complains against judges, and statistics revealing how Scotland’s judges including the Lord President Lord Gill have dealt with complaints against their own judicial colleagues under rules effectively written by themselves and waived through by MacAskill.

Astonishingly, not one Scottish judge has been disciplined in 25 months and very few complaints were actually investigated by the judges against their own colleague, according to the JCR who told msps: “..In the first 25 months of the new complaints regime, the Judicial Office's published statistics show that of 221 complaints there were 12 investigations, one judicial office holder apologised for his or her conduct and no judicial office holders were disciplined.”

MSPs have called for further responses from the Scottish Government and Lord President over the information contained in the evidence submitted by the Judicial Complaints Reviewer, published here:

Judicial Complaints Reviewer evidence to MSPs on register of judicial interests: I understand that the Committee is due to consider this petition again shortly. In view of this, and in response to the Cabinet Secretary’s letter of 22nd April 2014, this is an opportune time to pull together the reasons why the Judicial Complaints Reviewer believes that a register of interests for the judiciary is essential.

I write not from the viewpoint of the judiciary, who have a vested interest in this issue. I write from the perspective of the Scottish public. I write not on behalf of those who hand down justice, but those who are on the receiving end. It is important that their voice is heard. They have a right to know that justice is being done, an essential component of which is that it is seen to be done. A register of interests is a tangible way of showing that justice is being done.

I think it likely that the number of complaints against the judiciary would fall were there to be a published register of interest for judicial office holders. I have received complaints about perceived conflicts of interest that have come to light after court proceedings. A register of interests would allow issues to be dealt with at the time, thus averting the need for a complaint. That would be good for the judiciary and for the public.

The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime. They may be women who want protection from abusing partners, fathers who want access to their children, or people whose home is at stake due to various legal or family wrangles. People going through the court system face stress and anxiety, perhaps financial pressures, and fear about the future. Their perspective is important and must be a consideration in this matter.

Given the position of power held by the judiciary, it is essential not only that they have absolute integrity but crucially, that they are seen to have absolute integrity. Again, a register of interests is a way of demonstrating that a judicial office holder is impartial and has no vested interest in a case –financially, through family connections, club/society membership or in any other way. Conversely, the refusal to institute a register of interests creates suspicion that in turn undermines judicial credibility. So once more, a register of interests is good for the judiciary and good for the public.

The Cabinet Secretary for Justice states that there are sufficient safeguards already in place, citing the complaints rules as one of these safeguards. As the person appointed by the Cabinet Secretary to review complaints handled under these rules, I can say from experience over nearly three years that the rules are not fit for purpose. I have attached a document I prepared in December 2013, following consultation with members of the public who had made complaints under these rules, to support this assertion.

The Judicial Office’s published statistics demonstrate either that judicial conduct is exemplary, and the public vexatious or unable to understand the rules; or they show that the rules are not fit for purpose. I suggest that it is the latter. For the first year in which the Rules were operational(a 13-month period to 31st March 2012), 107 conduct complaints were made to the Judicial Office and 98 were completed during that year. With one exception, all of them were dismissed without investigation. Only one investigation was carried out, following which the complaint was dismissed as "unsubstantiated".

The latest statistics have yet to be published, but year two figures (to March 31st 2013) show that 114 complaints were made (plus the 9 carried over from year 1). Of 116 concluded during the year, only 11 were investigated. Four of the 11 were still underway at year-end, meaning that 7 investigations were completed in Year 2. Of the 7, one was withdrawn; 2 resolved informally; and 4 were reported to the Lord President. Of the 4 reported to the Lord President, 3 were deemed to be without substance, unsubstantiated or vexatious. For the one remaining complaint, an apology was offered by the judicial office holder and the Lord President deemed that no further action was required.

In summary, in the first 25 months of the new complaints regime, the Judicial Office's published statistics show that of 221 complaints there were 12 investigations, one judicial office holder apologised for his or her conduct and no judicial office holders were disciplined.

My experience in this office leads me to the conclusion that the rules are not a sufficient safeguard. But even if they were, particularly when combined with the judicial oath and the Statement of Principles of Judicial Ethics, why not go further in enhancing transparency and accountability?

There are sufficient safeguards in place to prevent members of public boards from acting inappropriately –such as robust audit committees, external scrutiny and regulation, board meetings held in public and a rigorous appointments process. Nevertheless, such members are still required –and rightly so –to complete a publicly accessible register of interests in order to demonstrate transparency and accountability. It is right that public appointees and elected politicians are required to do this, and it is also right that the judiciary should too. Registers of interest are the norm now and the judiciary is out of step with standard practice. This undermines their standing with the public.

For all of the above reasons, it is in the interests both of the judiciary and of the public for there to be a register of interests.

I have been frank about my views in this letter, and I hope that I have not given the impression that I do not have a great deal of respect for the judiciary and the difficult work that they undertake for the greater good of society. Their work is essential, their independence vital. An independent judiciary underpins a civilised society. But with independence goes accountability, and a register of interests is a mechanism for enhancing accountability.

I will be standing down from my role as JCR in the summer, but until that time I am happy to provide further information to the committee if that would be helpful.

Last year, Judicial Complaints Reviewer Moi Ali attended the Scottish Parliament’s Public Petitions Committee  to give evidence to msps on proposals to create a register of judicial interests, 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

TOP JUDGE OPPOSES TRANSPARENCY OF JUDICIAL INTERESTS:

Scotland’s top judge Lord President Lord Brian Gill fiercely opposes calls for a register of judicial interests which would reveal the judiciary's vast personal, undeclared wealth, extensive family and business connections throughout the legal profession, links to big business, offshore trusts & investments, ownership of numerous and high value properties through a variety of ‘creative’ arrangements, directorships, shareholdings, and even unpublished criminal records of members of the judiciary.

Lord Gill has previously refused two invitations to appear before the Scottish Parliament to give evidence and face questions on his opposition to the proposal to create a register of judicial interests. The top judge has also used the Scotland Act as a loophole to avoid further scrutiny on the matter.

Gill’s use of Scotland Act against MSPs was reported in the media. Writing in a letter to msps, Lord Gill implied cooperation with Parliament would be withdrawn over calls to make judges more transparent in register : “Section 23(7) of the Scotland Act provides inter alia that the Parliament may not require a judge to attend its proceedings for the purposes of giving evidence. This is not a loophole. It is a necessary part of the constitutional settlement by which the Parliament is established. Its purpose is to protect the independence of the judiciary, a vital constitutional principle that is declared in section 1 of the Judiciary and Courts (Scotland) Act 2008”

The judge continued: “When a committee invites a judge to give evidence before it, I have to decide whether the subject matter might infringe the principle of judicial independence; and whether the evidence required could be satisfactorily given in writing.”

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee deliberations on Petition PE1458: Register of Interests for members of Scotland's judiciary can be found here : A Register of Interests for Scotland's Judiciary