The No Minister - Scottish Parliament debate on register of Judicial interests: Opening speech of Roseanna Cunningham MSP, Minister for Legal Affairs

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 opening speech given by the Scottish Government’s Minister for Community Safety and Legal Affairs - Roseanna Cunningham MSP (Perthshire South and Kinross-shire).

Roseanna Cunningham MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

 

The Minister for Community Safety and Legal Affairs (Roseanna Cunningham):Today’s debate provides an opportunity to consider the issues related to a register of interests for the judiciary—a subject that has been discussed by the Public Petitions Committee over recent months, as the convener, David Stewart, outlined.

It is, of course, vital that judges be seen to be both independent and impartial. They must be free from prejudice by association or relationship with one of the parties to a litigation. They must be able to demonstrate impartiality by having no vested interest that could affect them in exercising their judicial functions, such as a pecuniary interest or familial interest.

As I understand it, the petition originally concerned a register of pecuniary interests for the judiciary. It called on the Scottish Parliament to urge the Scottish Government to create a register of pecuniary interests of judges bill, as was then being considered in New Zealand’s Parliament, or to amend present legislation to require all members of the judiciary in Scotland to submit their interests and hospitality received to a publicly available register of interests. That is a narrower definition of the register than the convener talked about.

The Scottish Government considers that it is not necessary to establish a register of judicial interests. Our view is that the safeguards that are currently in place are sufficient to ensure the impartiality of the judiciary in Scotland. Those important safeguards are: the judicial oath, the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”, which was issued by the Judicial Office for Scotland in 2010, and the Judiciary and Courts (Scotland) Act 2008.

I will look at those three safeguards in a little more detail. The judicial oath, which is taken by all judicial office-holders before they sit on the bench, requires judges to

“do right to all manner of people ... without fear or favour, affection or ill will”.

The statement of principles of judicial ethics states at principle 5 that all judicial office-holders have a general duty to act impartially. In particular, it notes:

“Plainly it is not acceptable for a judge to adjudicate upon any matter in which he, or she, or any members of his or her family has a pecuniary interest. Furthermore, he or she should carefully consider whether any litigation depending before him or her may involve the decision of a point of law which itself may affect his or her personal interest in some different context, or that of a member of his or her family”.

The Judiciary and Courts (Scotland) Act 2008 contains provisions to regulate and investigate the conduct of judicial office-holders. Under section 28, the Lord President has a power to make rules for the investigation of

“any matter concerning the conduct of judicial office holders”.

The Complaints about the Judiciary (Scotland) Rules came into force in 2011. There was a consultation on those rules last autumn, responses to which the Lord President has considered, and new rules and accompanying guidance will be published in due course.

Jim Eadie (Edinburgh Southern) (SNP):

In reaching the conclusion that the introduction of a register of judicial interests would not be appropriate at this time, did the Scottish Government consider and evaluate the Council of Europe group of states against corruption—GRECO—report that looked specifically at that matter? Did that help to inform the Scottish Government’s thinking?

Roseanna Cunningham:

We have looked at that report. I will refer to it shortly, if I have the time.

In addition, members will be aware that the Scottish Court Service has set up a public register of judicial recusals, which has been in operation since 1 April 2014. David Stewart mentioned it. The register sets out why a member of the judiciary has recused himself or herself from hearing a case in which there is a conflict of interests. Although that does not go as far as the petition suggested, we believe that it is a welcome addition to the safeguards that I have already covered.

The setting up of a register of judicial interests would be a matter for the Lord President, as head of the judiciary in Scotland. The Lord President takes the view that a register of pecuniary interests for the judiciary is not needed. Furthermore, a judge has a greater duty of disclosure than a register of financial interests could address.

Neil Findlay (Lothian) (Lab):

Will the minister take an intervention?

Roseanna Cunningham:

I want to make some progress.

The statement of judicial ethics that I referred to says that a judge’s disclosure duties extend to material relationships. In his written evidence to the Public Petitions Committee, the Lord President referred to the findings of the Council of Europe group of states against corruption. The 2013 GRECO report, which followed the fourth evaluation round report on the United Kingdom, found that

“nothing emerged during the current evaluation which could indicate that there is any element of corruption in relation to judges, nor is there evidence of judicial decisions being influenced in an inappropriate manner.”

GRECO therefore did not recommend the introduction of a register of judicial interests, which suggests that the current safeguards are sufficient and that there is no obvious problem that such a register would solve.

The position is, of course, different for MSPs and for members of other Parliaments. We are directly accountable to our constituents and are required to register our interests. GRECO also considered issues regarding the prevention of corruption in relation to members of Parliaments across the UK and recommended:

“it is essential that the public continues to be made aware of the steps taken and the tools developed to reinforce the ethos of parliamentary integrity, to increase transparency and to institute real accountability.”

David Stewart:

Will the minister take an intervention?

Roseanna Cunningham:

If David Stewart will permit me to, I want to move on; I want to get through my speech.

I am aware that the petition in question was related to the Register of Pecuniary Interests of Judges Bill in the New Zealand Parliament, which was considered earlier this year by its Justice and Electoral Committee. As David Stewart indicated in his opening remarks, the bill did not proceed. As I understand it, the committee recommended that the bill should not be passed and, following that report, the sponsoring member intended to withdraw it.

It is also the case that there is no equivalent register in other parts of the UK. As I have said, we do not think it necessary to establish such a register. The case has not been made that the existing safeguards are not effective. I can only assume that members agree with that, because we completed stage 3 of the Courts Reform (Scotland) Bill on Tuesday. That bill could have been used as a vehicle for legislating for the introduction of a register of judicial interests. I am surprised that an amendment to that effect was not, if members are exercised by the issue, lodged during consideration of the bill.

However, today is an opportunity for wider consideration of the issue, and I look forward to hearing what others have to say. I will perhaps return to some of the issues that are raised in my closing remarks.

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