COMPARE THE JUDGES: MSPs call for US style transparency on judicial declarations as Minister fails to convince Holyrood committee that secretive & wealthy judges should be excluded from a register of interests

Minister fails to convince MSPs judges wealth & links to big business should remain secret. MSPs from the Scottish Parliament’s Public Petitions Committee are now deciding their next moves in their investigation of proposals to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary, after taking evidence from Paul Wheelhouse - the Minister for Community Safety & Legal Affairs.

The evidence session with Mr Wheelhouse, taking place at Holyrood last Tuesday 9 December, also heard of comparisons with a US register of financial interests for judges which could serve as a model for any register of judges interests in Scotland.

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.

Appearing in place of Scotland’s top judge Lord President Lord Brian Gill and the Cabinet Secretary for Justice – both of whom have refused invitations to appear before the Committee on previous occasions, Paul Wheelhouse said he recognised the public concern about a judiciary which is "shrouded in privacy" and will seek assurances from Scotland's top judge and the judicial complaints reviewer that the voluntary system of declaring interests is "robust". He could not give a guarantee that judges have not presided over cases where they have had an interest in the past, nor could he give a 100% guarantee that they would not do so in the future to Holyrood's Public Petitions Committee.

Scottish Government aides to Mr Wheelhouse who accompanied him to the meeting were also forced to admit they and Mr Wheelhouse had not even met the new JCR, nor the Lord President. It also came out neither the Minister or civil servants had yet had sight of Lord Gill’s proposed changes to the complaints rules – even though the consultation held by the top judge on rules changes had ended over a year ago.

Legal Affairs Minister Paul Wheelhouse evidence to Petitions Committee Petition 1458 Register of interests for members of Scotland's judiciary

During the evidence hearing, it was also revealed the new Judicial Complaints Reviewer (JCR), Gillian Thompson OBE – who authored a report on undeclared interests of Scottish Court Service staff, failed to answer letters from the Petitions Committee or provide MSPs with a copy of the final report of Scotland's first JCR – Moi Ali – who supports the call for 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

Entering the debate for the first time publicly, sacked Justice Secretary Kenny MacAskill, who replaced transparency crusader Chic Brodie MSP on the Petitions committee after losing his job in Nicola Sturgeon's cabinet reshuffle, gave a poor first performance at the Committee, fixating at one point on “football interests” of judges.

Mr MacAskill also attacked the American register of judicial interests, saying the US register had led to judicial candidates being "pilloried". Struggling on the petition he has previously opposed in letters to the Petitions Committee, MacAskill then asked if judges would have to disclose their favourite football team.

However, several MSPs from across the political spectrum said there was no strong argument against a judges' register when MSPs have to disclose their interests.

Mr Wheelhouse then went on to attack the media and the public’s expectation of transparency. Following a script of top judge Gill, who has already attached the press, Wheelhouse claimed that rules requiring judges to disclose their vast wealth, links to big business & other connections, may open the judiciary up to “potentially hostile and aggressive press action”.

The comments sparked ire at the Petitions Committee.

Media articles including The Times reports MSPs want register of judges interests to go ahead. Convener David Stewart said: The big issue that I and my colleagues have been pushing is that it is assumed that those who appear before a judge have some form of psychic powers. How will they know whether there is a conflict? If there is no register, they will not be aware of it.

Until Chic Brodie and I met the Lord President, there was no system for recording recusals. We made that point to the Lord President, and—in fairness—he agreed to put a system in place, but it came into force only in April. It is only since then that we have been able to assess whether judges have recused themselves. Previously, that was a complete mystery; even recusals were a mystery.

You make out that everything is done fairly and is all above board. However, an ordinary person who appears before a judge does not have a clue whether there is any conflict of interest. That is the key point. We want—or rather, the petitioner wants—a system that is similar to the system for other public officials.

Your only real argument is that judges cannot defend themselves. I am sorry, but that is not a very strong argument.

Replying, in similar words used by Lord Gill himself in letters to MSPs, Minister Paul Wheelhouse said : If I may say so, convener, you misrepresent what I said. I did not say that that is the only ground for my view. There are serious concerns about potential influence on the judiciary as a result of revealing their interests in a public register. That would open them up to potentially hostile and aggressive press action, which might apply pressure on them to come down in a particular way in an adjudication.

Mr Wheelhouse's predecessor Roseanna Cunningham was not persuaded by the need for a register, insisting ''the safeguards currently in place are sufficient to ensure the impartiality of the judiciary''. However, Ms Cunningham failed to persuade MSPs during a full debate on judicial interests at Holyrood in October, which saw a cross party vote and support for the proposal to create a register of judicial interests.

Lord President Brian Gill has declined two invitations to give oral evidence to the committee but has provided written submissions. His latest submission revealed a list of trials where a judge or sheriff voluntarily stepped down or was asked to leave in the last year when a conflict of interest was disclosed.

They included a sheriff whose membership of the Royal Society for the Protection of Birds (RSPB) was seen as an obstacle to presiding over a case involving the RSPB and another who was asked to leave a trial where a report was written by his colleague's wife.

The Lord President personally recused himself from a civil trial at the Court of Session in June because a relative acted for a respondent in court.

Diary of Injustice reported on the case involving the recusal of the top judge - revealing the “relative” of Lord Gill turned out to be his own son, Advocate Brian Gill, who was acting for the respondent. The case in which the recusal was made is still shrouded in secrecy as Scottish Court Service officials & Judicial Office refuse to give any further details to the media.

Speaking at the committee, Mr Wheelhouse said: "I do recognise the concern that the recusal process is, to some extent, shrouded in privacy because it is within the judiciary itself and not open to public scrutiny. "I will look to discuss the degree to which the Lord President and the new JCR have any suggestions on how that should be addressed in future."

Labour MSP Anne McTaggart said she is "not fully convinced yet that there is an argument" for judges to withhold their interests when MSPs have to declare them.

Independent MSP John Wilson asked "who judges the judges?" and called for a 100% assurance that every judge and sheriff will recuse themselves when a conflict arises.

The full official report of the meeting & evidence from Paul Wheelhouse to the Public Petitions Committee will be published next week on Diary of Injustice, to maintain the record of the debate.

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.”

Even though Scotland’s top judge opposes the creation of a register of interests, MSPs held a debate in the Scottish Parliament’s main chamber on Thursday 7 October 2014, which saw cross party support for the proposal. MSPs overwhelmingly supported motion S4M-11078 - in the name of Public Petitions Convener David Stewart MSP on petition PE1458, urging the Scottish Government to give further consideration to a register of interests for judges.

The parliamentary 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

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