Saturday, October 25, 2014

Absence of register for judges may erode public confidence in judiciary - Chic Brodie MSP closing speech on Scottish Parliament register of judicial interests debate

Scottish Parliament debate on register of judicial interests. ON Thursday 09 October 2014, the Scottish Parliament’s main chamber held a detailed ninety minute debate on calls to require judges to declare their significant financial and other interests, as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary. On conclusion of the debate, MSPs overwhelmingly supported motion S4M-11078 - in the name of Public Petitions Convener David Stewart MSP on petition PE1458 and urged the Scottish Government to give further consideration to a register of interests for judges.

The public petition, submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

In a move aimed at widening public awareness of the undisclosed interests of Scotland’s judiciary and details contained in the recent debate by MSPs at Holyrood, each day this week, Diary of Injustice is publishing the official record of the speeches given by individual MSPs who participated in the debate along with video footage.

This article focuses on the closing speech given by Chic Brodie MSP (South Scotland) (SNP). Chic Brodie is Deputy Convener of the Scottish Parliament’s Public Petitions Committee and is a member of the Economy, Energy & Tourism Committee. Mr Brodie is also a member of a number of Cross Party groups.

Chic Brodie MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Chic Brodie (South Scotland) (SNP): This has been an interesting and necessary debate, as Joan McAlpine pointed out. I anticipated that it would be.

I make it clear that the intention of the petition—and the debate—was not to impugn the independence, integrity or credibility of the judiciary. Indeed, the very opposite has been clear from members’ speeches. Members talked about openness and transparency. They talked about perceptions, clarity and trust, and the need for change. Their comments reflected concerns of members of the Public Petitions Committee.

As members said, the debate arose from the petition that Peter Cherbi lodged, which called for a register of interests for members of Scotland’s judiciary. The petition called for a register of pecuniary interests, and it suggested amending legislation so that declarations could be made in relation to general interests and hospitality.

It is perhaps instructive to consider the history of the position vis-Ă -vis the Parliament’s power to call for witnesses and—importantly—documents. Under section 23(7) of the Scotland Act 1998, the Parliament

“may not impose”

a requirement in that regard on

“a judge of any court”.

From reading the Hansard of debates on the Scotland Bill, it seems that there was little debate about the rationale for exempting the judiciary, although the current Advocate General for Scotland suggested at the time that the Parliament should be able to compel witnesses to attend and produce documents.

The provision was intended to protect the judiciary’s position in the constitution. The impartiality of the judiciary in Scotland would be secured, and in the event of a potential conflict of interest a judge would necessarily recuse himself or herself from a case. Of course, that relies on the judge himself to determine whether he has relevant interests, but the approach tends to cover all relationships, in the way that the minister described, rather than just monetary and hospitality considerations.

There are some safeguards to ensure judicial impartiality, which might mitigate and temper suggestions of impropriety by members of the judiciary because of a lack of transparency regarding their interests, particularly pecuniary interests.

We have mentioned the judicial oath, in which judges swear that they will

“do right to all manner of people … without fear or favour”.

There is also the Judiciary and Courts (Scotland) Act 2008, which sets out the rules that may be invoked if it is felt that a judicial office-holder is not acting impartially. Section 28 of that act allows the Lord President to make rules for the investigation of complaints about the judiciary, a matter to which I hope to return briefly.

Thirdly, there is the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”, which was revised in May 2013 and is to be used as a guide for holders of judicial office in Scotland. Enshrined in that document is, perhaps, the basis of the petition and of an understandable perception—or, indeed, misperception—that underpins the petition and gives rise to concern.

Section 4.9 of the statement says:

“it is recognised that a judge may, from time to time, legitimately be entertained by legal, professional or public organisations or officeholders, in furtherance of good relations between them and the judiciary as a whole, or representatives of it.”

What on earth does that mean? It goes on:

“Furthermore, nothing said here should be understood as inhibiting judges from accepting invitations to give lectures, addresses, or speeches of a non-legal nature at dinners, or other occasions, or … from accepting … hospitality, tokens of appreciation for their efforts, or appropriate expenses of travel or accommodation.”

That, in itself, is okay but openness and transparency of information would eliminate some of the misperceptions that matter.

In addition to those safeguards, the Council of Europe GRECO stated that it found no

“element of corruption in relation to judges”.

However, one might argue that that was not the charge; rather, it was that a register might secure the transparency that would make the group’s evaluations redundant.

The petition raised and raises several questions, none of which requires a defensive posture. For example, the board members of the Scottish Court Service, three of whom are judges, already declare some interests in the SCS annual report. We also understand that the SCS staff are required to register all of their interests. I fail to understand why that cannot be extended to cover the whole of the judiciary.

The Judiciary and Courts (Scotland) Act 2008 set up the role of the Judicial Complaints Reviewer to review the handling of investigations into the conduct of the judiciary. The previous holder of that role—a role that should be much more robust and recognised as important—indicated that, in the interest of general transparency, a register of interests for the judiciary would likely lead to an increase in public confidence and trust—two of the words that I mentioned at the beginning of my speech.

The practice extends not only to the SCS but to the Crown Office and Procurator Fiscal Service, which operates a register of hospitality interests, and to the Scottish Legal Complaints Commission, which publishes a full register of interests and hospitality.

We accept that the petition called for a register of pecuniary interests. It recognised that we would not need to try to capture all of the other concerns that might arise, as the minister said—for example, family relationships—so we accept that it might be impossible to capture all interests that might arise or cause concern. The onus should, rightly, be on the judge or sheriff to declare any relationship interests at the beginning of a case and to recuse appropriately if necessary.

There is concern that a register would have unintended consequences—a phrase that has been used often in the debate—for the judiciary’s freedom and privacy and its freedom from harassment from the media or dissatisfied litigants. Those are concerns, but they are no less so for others in public life, including MPs and MSPs, who may be attacked publicly for non-declaration of interests. Although it is argued that the establishment of a register may have the unintended consequence of eroding public confidence in the judiciary, it might equally be argued that its absence might have the same effect.

I congratulate Peter Cherbi, the petitioner. I welcome the exchange that we had with the Lord President on the issue, although I wish that it had been in front of all the committee. I suspect that the issue will still be a topic for review and will be, as Stewart Stevenson said, recalibrated. Perhaps the snub to the Scottish people will be recovered.

I am glad that we have had the opportunity to discuss and debate the matter meaningfully.

Decision Time

The Presiding Officer (Tricia Marwick):

There is one question to be put as a result of today’s business.

The question is, that motion S4M-11078, in the name of David Stewart, on petition PE1458 on a register of interests for members of Scotland’s judiciary, be agreed to.

Motion agreed to,

That the Parliament notes Petition PE1458, in the name of Peter Cherbi, on the issue of a register of interests for members of Scotland’s judiciary; welcomes the petitioner’s efforts to highlight what it considers to be an important matter, and commends the issues raised to the Scottish Government for further consideration.

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 can be found here : A Register of Interests for Scotland's Judiciary

14 comments:

  1. Nice to see Chic Brodie had a go at the dodgy greco report

    "In addition to those safeguards, the Council of Europe GRECO stated that it found no

    “element of corruption in relation to judges”.

    However, one might argue that that was not the charge; rather, it was that a register might secure the transparency that would make the group’s evaluations redundant."

    ReplyDelete
  2. The petition raised and raises several questions, none of which requires a defensive posture. For example, the board members of the Scottish Court Service, three of whom are judges, already declare some interests in the SCS annual report. We also understand that the SCS staff are required to register all of their interests. I fail to understand why that cannot be extended to cover the whole of the judiciary.

    Too right - if the rest have to be on a register the judges also have to be on same or even more.

    Glad to see you got them all to vote for it even though Cunningham and her lawyer club opposed it.

    Keep up the good work Peter!

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  3. What is the point of having a Scottish Judicial Oath when it is just words to be glibly tripped off the tongue, where they know that there are no policies and procedures in place to make sure this is a solemn promise rather than a sick joke?

    ReplyDelete
  4. Very interesting debate you have posted on your blog.Others should pay attention to this and start asking questions of their own judiciary and why not one judge willingly wants their interests registered.

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  5. Amazing you got a debate into your own legislature.

    Well done sir and keep at it!

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  6. Is it not the case that in order for a reliable democracy to function properly that their Judiciary should have even higher standards and be more transparent that their MP's?

    Anything less is tantamount to having a subversive unelected criminal element in control?

    Welcome to Scotland?

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  7. As well as creating this register asap I feel we are all entitled to proper explanations to answer why judges once declared in the House of Lords register then decided not to bother.

    Also the whole question of how the judges were able to dodge this issue up to now and Gill treating the parliament in the way he did has to come out properly not be left dangling by a wig.

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  8. Good point about the register needs to exist anyway I dont trust the judges now I have read how they dodged msps on this petition of yours

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  9. YES Mr Brodie is quite right, all should be accountable and subject to independent regulation enforcing transparency... NOT LEAST THE JUDICIARY.

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  10. Looks like you put a lot of work into this petition and the debate.

    Think of it this way,You got your legislature to vote a no confidence motion in your top judge and the way the judiciary do things.

    No matter who says what this will hurt and everyone knows it.

    ReplyDelete
  11. Anonymous said...
    As well as creating this register asap I feel we are all entitled to proper explanations to answer why judges once declared in the House of Lords register then decided not to bother.

    Also the whole question of how the judges were able to dodge this issue up to now and Gill treating the parliament in the way he did has to come out properly not be left dangling by a wig.

    26 October 2014 15:26
    ££££££££££££££££££££££

    Easy answer is that the Law Society of Scotland have complete control of writing and influencing the clauses in all white papers and what eventually ends up as the law and they were simply protecting their own lawyers by making them immune from the laws of the land?

    The Law Society of Scotland have ruined Scotland to such an extent that Scottish lawyers are now above the law and immune from prosecution?

    The only way that a Scottish lawyer can be dealt with is if the Law Society of Scotland decree that they are to be sacrificed to preserve the crooked whole, most likely because they have 'crossed' the Law Society of Scotland in some way or refused to comply with their corrupt and vengeful ways?

    ReplyDelete
  12. The comment at 10.06 is very true I remember a comment on DOI some time ago when there was overwhelming evidence of two solicitors colluding in a court case and a Troubleshooter lawyer came up with the fantasy claim that a solicitor conducting a court case was immune from any claim by a client. This claim was fully supported by the Law Society and several poloticians, this clearly shows how ridiculous the whole Legal system is and the power it uses to manipulate.

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  13. The Scottish Judiciary and Scottish lawyers in general are at an all time low in the estimation of the Scottish Public?

    We all know that the reason for this is that the standards of Scottish lawyers are low because they do not feel as though they need to try because they make sure they take a double or triple bulk billed fee regardless of the standard of service or skill that they provide?

    This is due directly as a result of the Law Society of Scotland's policy of making Scottish lawyers above the law and keeping the crooks employed and causing damage. This has the intended effect of lowering the overall standard, so much so that it can no longer be regarded as a profession?

    The thing is, among these Scottish lawyers, they are all fizzing mad, like an alkaseltser in their gravy and blame Public Citizen Champion Mr Cherbi for, wait for it.......telling the rest of the Scottish Public what these Scottish lawyers are all about. That says it all about their mindset?

    Blood sucking parasites?

    ReplyDelete
  14. One crooked Scottish lawyer to another...

    Farquhar, how do you know how much to charge a new client?

    Simple Campbell, I do not make any assumptions about them when I meet them for the first time. I do not scan them for the usual thing like gold Rolex watches or diamond earrings, nor do I take note of how expensively they are dressed or if they have their own expensive pen or gold jewellery. I simply ask them to sign me a cheque, there and then, for a modest amount to account for me to consider their case?

    But Farquhar, I do not understand how you manage to screw them by failing to adopt the usual tricks of our trade?

    Ah, Campbell, the method is in my madness. Once I have them off-guard by passing myself off as an engaging and sympathetic fellow, I simply telephone their Bank Manager, quoting the bank account on their cheque and by return of call I am reliably informed of the total funds in my new client's accounts, including overdraft amount, thereby identifying how much money I can charge safe in the knowledge that he, my poor client, will have no money left to pursue me when things inevitably go awry?

    What time is it? 11am...C'mon Campbell, you have learnt a valuable lesson in the art of being a Scottish lawyer today, lets go for luncheon where we can toast to our good health over a bottle of Chateaux Latour on one of our unsuspecting clients?

    ReplyDelete

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