Lord NO-NO to GO-GO: Scotland’s top judge Lord Brian Gill steps down after controversial three year term as Lord President - amid battles with Holyrood, media & transparency

Lord Gill to ‘retire’ after run-ins with politicians, press & transparency. SCOTLAND’S top judge, Lord President Lord Brian Gill has announced he is stepping down from office on 31 May 2015. Until a successor is found, the Lord President’s duties will be taken up by the Lord Justice Clerk, Lord Carloway.

Gill (73) who is Scotland's longest serving judge, has served a short three year term as Lord President, compared to previous holder of the office Lord Hamilton, who held the post for seven years.

In the course of a long and distinguished legal career Gill presided over significant changes to the Scottish legal system.

He also famously branded much of the Scots legal system as “Victorian” and “unfit for purpose” in his Scottish Civil Courts Review - which sought to change some of the antiquated structures of Scotland’s expensive, closed shop and out of reach civil courts.

However, many of the Civil Courts Review proposals were watered down by the Taylor Review, carried out at the insistence of the Scottish Government and the legal establishment - who feared giving the public easier and cheaper access to court may affect law firms’ profits.

For the past two years, Lord Gill fought a very public and bitter battle with the Scottish Parliament concerning MSPs investigations of transparency and accountability in the Scottish judiciary, amid plans to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary

The proposals to create a register of judicial interests 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.

Gill refused three invitations to appear before MSPs to give evidence on his intense opposition to a register requiring judges to declare their significant wealth and links to big business.

Faced with a no-show of Scotland’s top judge, members of the Scottish Parliament’s Public Petitions Committee took evidence from Scotland’s first Judicial Complaints Reviewer (JCR) Moi Ali. During questions at the Scottish Parliament’s Petitions Committee, Moi Ali told msps there was little transparency or accountability in Scotland’s judiciary.

And, in spite of Scottish Ministers attempts to thwart a debate at Holyrood last October 2014, msps overwhelmingly backed a motion urging the Scottish Government to create a register of judicial interests – reported along with video footage & the official record, here: Debating the Judges

At the recent Commonwealth Law Conference held in Glasgow during March 2015, Lord Gill fired another salvo at politicians, transparency and the democratic process – branding all as “insidious”.

Lord Gill told his startled audience: “The threats to judicial independence do not always come with a knock on the door in the middle of the night.  In a society that prides itself on the  independence  of  its  judiciary,  the  threat  may  come  in  insidious ways, even at the hands of well-meaning governments and legislators, in the name of efficiency and, ironically,  in the name of  transparency.”

After the speech, Gill and several judicial figures including Lord Neuberger fled the conference after learning Wikileaks founder Julian Assange was booked to speak at the event.

Lord Gill also supported the retention of corroboration – a key legal safeguard against miscarriage of justice - where evidence must be verified by two sources.

Brian Gill was first appointed as a Senator of the College of Justice in 1994. He was appointed Lord President of the Court of Session and Lord Justice General in June 2012, having held the position of Lord Justice Clerk from November 2001.

Under the Judiciary and Courts (Scotland) Act 2008, First Minister Nicola Sturgeon will now establish a panel to recommend individuals who are suitable for appointment to fill the vacancy.

It has been rumoured for several months senior figures in the Scottish Government have lobbied for a female candidate to become Scotland’s first Lady Lord President.

Court of Session judge Anne Smith, who was made President of the tribunals service by Lord Gill last summer, is seen by some as ‘a good bet for the post’.

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

Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:

The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, now Lord President Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.

The Civil Courts Review can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15

Gill, giving a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.

“It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Previous articles on the Civil Courts Review and reforms of Scotland's antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.