GOOD LORD, RULES? Scotland’s top judge keeps MSPs next move on register of judges interests on hold - as files reveal two year consultation on judicial complaints rules is exercise in ‘perception’

Top judge Lord Gill & the two year rules consultation. TWO YEARS after Scotland’s top judge Lord Brian Gill launched a ‘consultation’ on amending rules governing complaints about the judiciary, documents obtained from the Judicial Office appear to suggest the entire exercise is little more than an attempt to delay calls for greater judicial accountability.

The development comes as legal observers await the next move by members of the Scottish Parliament’s Public Petitions Committee in their two year investigation of judicial transparency and proposals to create a register of interests for judges - Petition PE1458: Register of Interests for members of Scotland's judiciary.

In cryptic exchanges between staff of the Scottish Court Service, a short series of emails reveal the consultation exercise on amending complaints rules is seeking to create a process where there is a ‘perception’ complaints about the conduct of judicial figures are being more fully investigated and dealt with than under the current regime of judicial self regulation – where Lord Gill decides the fate of each complaint himself – usually resulting in the dismissal of a complaint.

And despite calls for Gill (73) to update members of Holyrood’s Public Petitions Committee on the rules consultation, over four months since the last exchange from Scotland’s longest serving judge – dubbed Lord NO-NO for his refusal to face MSPs questions at Holyrood – the Lord President has yet to report back to the Public Petitions Committee on his intentions to ‘improve’ the process by which court users, litigants, legal agents and the public can make complaints about judges.

In the documents released by the Scottish Court Service in response to a Freedom of Information request, it is clear little activity with a motive to create fair rules around judicial accountability has taken place on the ‘consultation’ which began in early 2013.

In one poorly edited email, the true nature of the consultation emerges –  a staff member at the Scottish Courts Service states: “… it has to be agreed to - and perception about this being a process for the complainer to be satisfied? However, I might be remembering incorrectly - let me know.”

Two years of silence & secrecy ensue, while Lord Gill and his colleagues on the bench fly around the world to posh meetings with big business, vested legal interests, and lavish state visits to Qatar.

Then, finally in mid January of this year, court staff again discuss the rules which are yet to be implemented, two years on.

An email dated 15 January 2015 from the “Head of Strategy for the Judicial Office” states: We discussed and you agreed to prepare a response to the consultation on the Complaints About the Judiciary (Scotland) Rules. Firstly, I attach:

1. Consultation document.
2. Consultation responses.
3. Consultation response analysis.
4. Minute from to the Lord President setting out draft new rules.
5. Copy of draft guidance - this will need further amendments depending on what you determine.
6. Current rules and guidance which are all online: Complaints about the Judiciary

What needs done:
• Review the documentation.
• Consider the draft new rules, 'minute and the report on the complaint rules consultation.

What have we:
a. Accepted and included in the new rules;
b. Needs to go into guidance; and
c. Consider what needs to be published in response to the consultation.
• Once the above is done we should discuss your findings and then consider next steps

The Scottish Court Service refused to identify the authors of, or release any of the consultation responses or any further material on the discussions relating to proposed new rules on judicial complaints.

The existing rules on judicial complaints - in force since 2013 - were condemned by Moi Ali - Scotland’s first Judicial Complaints Reviewer as ““window dressing” during an evidence session at the Scottish Parliament’s Public Petitions Committee in September 2013, reported 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

Coverage of a full debate on the creation of a register of interests for Scotland’s judiciary – held at the Scottish Parliament on 7 October 2014 - where MSPs overwhelmingly backed a motion urging the Scottish Government to create a register of judicial interests was reported here: Debating the Judges

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

JUDICIAL COMPLAINTS – NO INDEPENDENT ELEMENT

JCR should have more powers – Moi Ali. In the second annual report as Judicial Complaints Reviewer, Moi Ali called for the Scottish Government to give more powers to the JCR’s office to deal with errant judges. Ms Ali said: “I think fundamentally the problem is the legislation. “The way it’s created, it’s about self- regulation so you have judges judging judges’ conduct. There isn’t really an independent element.“I’m presented as the independent element but, without the powers, I can’t be independent. We have the appearance of independent oversight but not the reality.”

After Scottish Ministers refused to give the JCR role a wider remit in 2014, Moi Ali stepped down from the position, citing she had no power and the role was "tokenistic".

Moi Ali’s third and final report as JCR : Report of the Judicial Complaints Reviewer 2013-2014 - details complaints of alleged racial bigotry, bullying, lying, conflicts of interest and making secret recordings of meetings.

Commenting on the attitude of the judiciary, Moi Ali said: "Unfortunately, there has been little interest in the positive difference that the JCR could make.Although I have had a good working relationship with the judicial office, I have met the Lord President just once in three years.”

"My interactions with both the Lord President's office and the judicial office have focused more on what I cannot do rather than what I can do and as such, an opportunity for whole system improvement has been lost.

In an earlier letter to MSPs, Moi Ali wrote of her support for the creation of a register of judicial interests and an increase in judicial accountability & transparency.

Ms Ali told MSPs: “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.”