SUBBING FOR THE BENCH: Legal Affairs Minister set to appear before MSPs to answer questions on proposal to create a register of interests for Scotland’s judiciary

Legal Affairs Minister Paul Wheelhouse to face MSPs on judges register plan. WITH the departure of Kenny MacAskill as Justice Secretary, it has been revealed the new Community Safety & Legal Affairs Minister - Paul Wheelhouse - is to attend the Scottish Parliament’s Petitions Committee on December 9 2014 to face questions from MSPs on calls to create a register of judicial interests as contained in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The move comes after the recent lively debate on judicial interests in the Scottish Parliament’s main chamber on Thursday 7 October 2014,  where 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 debate was reported by Diary of Injustice along with video coverage here: TRANSPARENCY TIME: Top judge & Scottish Government told to rethink refusal on declarations of judges as Holyrood MSPs support calls to create a register of judicial interests

Petition PE1458 – a proposal to increase judicial transparency and 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.

Previously, during the last Holyrood hearing of the petition - on 28 October, MSPs agreed to call in the then Justice Secretary – Kenny MacAskill - to face questions on the proposal to register all of Scotland’s judges interests. Mr MacAskill had previously opposed the proposal, almost to the letter of the opposition vented by Scotland’s top judge, the Lord President & Lord Justice General Brian Gill.

MSPs also demanded to see the unredacted 2014 annual report of the Judicial Complaints Reviewer (JCR), Moi Ali - who has since quit the judicial investigator role - comparing it to “window dressing”. So far, the Scottish Government have not published Moi Ali’s 2014 annual report.

Public Petitions Committee : Register of interests for Scotland's judiciary Petition PE1458 Scottish Parliament 28 October 2014

However, it can now be revealed that in response to the Committee Convener’s invitation letter to Mr MacAskill asking him to appear before the Petitions Committee, the Scottish Government instead selected the then Legal Affairs Minister Roseanna Cunningham – who gave a speech for the Government in place of the Cabinet Secretary for Justice during the October debate - to attend an evidence session in place of Mr MacAskill.

Now, with the sacking of MacAskill and Ms Cunningham’s shift of portfolio amid the Cabinet Reshuffle by Scotland’s new First Minister Nicola Sturgeon, the torch has been passed to Mr Wheelhouse to appear before MSPs and answer why the Scottish Government has so-far sided with secrecy and judges who are worried exposure of their mega riches and connections may damage their judicial privacy.

Legal insiders say it will be interesting to hear how the new Legal Affairs Minister will respond to questions as to why Scottish Ministers have previously stated they believe the motley collection of judicial oaths and rules, all approved and written by the judges themselves -  are sufficient ‘safeguards’ to deter calls for full transparency of the judiciary’s vast wealth, business & family connections, and links to big business including companies convicted of criminal offences.

While the Scottish Government have made clear their objections to the transparency proposal,  the call to create a register of judicial interests is widely supported in the media, and has the backing of Scotland’s first Judicial Complaints Reviewer, Moi Ali – who gave her support for the petition during an evidence session before MSPs at the Scottish Parliament’s Public Petitions Committee last September, 2013.

TOP JUDGE WHO SAID NO-NO TO TRANSPARENCY & SCOTTISH PARLIAMENT:

Scotland’s top judge Lord President Lord Brian Gill fiercely opposes calls for any form of transparency & public accountability of the judiciary and Scotland’s Courts.

Over the course of nearly two years, Scotland’s top judge Lord Gill has focussed his anger on a Scottish Parliament investigation into calls for a register of judicial interests. The register proposal 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 refused at least 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.

Lord Gill’s challenge to MSPs declared judicial opposition to transparency. In Lord Gill’s opening letter to MSPs on the call for a register of judicial interests, the judge claimed “In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.”

In what was a hint of the sheer hostility felt by the judiciary against a call to bring transparency to judges interests, Lord Gill went onto accuse the media, press, litigants, court users and just about everyone else with an interest in transparency of being potentially hostile and aggressive, simply because someone may wish to raise questions of judges interests similar to the same kinds of questions which are raised of interests in other public officials and those in public life, politics & government.

And, if MSPs were unsure of the depth of Lord Gill’s attitude towards transparency, the top judge went on to refuse to appear before the Scottish Parliament, and used a loophole in the Scotland Act to justify his sweeping declaration he did not require to answer questions from Scotland’s democratically elected politicians. 

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