Friday, September 04, 2015

SUPREME, LORD: Scotland’s ex top judge Brian Gill who opposed Holyrood on judicial transparency & judges’ interests register - joins subs bench of UK Supreme Court

Lording it - Brian Gill moves to London. SCOTLAND’S former top judge – Lord Brian Gill who surprised the Scots legal world with the announcement of his sudden retirement in May 2015 - has been appointed to the supplementary panel of judges of the UK Supreme Court.

The UK Supreme Court today confirmed the appointment of Lord Gill to the panel of supplementary judges who sit on the London based UK Supreme Court.

A UKSC spokesperson said: “The supplementary panel on which Lord Gill is now a member has only been called upon once or twice in the last legal year. “

He added: “It is quite rare for the UKSC to invite Acting Justices to sit.”

Earlier this year, Brian Gill was invited to join the supplementary panel of judges - which can be called upon by the President of the Supreme Court to sit on specific cases where necessary.

The legislative framework for ‘Acting Justices’ on the UK Supreme Court states a person who holds the office of a senior territorial judge can be invited to act as a judge of the court at the request of the President of the Supreme Court. The legislative framework & conditions for such appointments is here: Acting judges & supplementary panel of UK Supreme Court

Now a UKSC supplementary judge - Brian Gill (73) – who became Scotland's longest serving judge - served a short three year term as Lord President.

Gill unexpectedly stood down from the role as head of Scotland’s judiciary after waging  a bitter two year battle with the Scottish Parliament over plans to create a register of interests for judges - Petition PE1458: Register of Interests for members of Scotland's judiciary

The judicial transparency petition which enjoys cross party support - has been the subject of a two year investigation by Holyrood and proposes the creation of a publicly available register of judicial 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.

Scotland’s first ever Judicial Complaints Reviewer (JCR) - Moi Ali gave the judicial transparency proposal her full backing.

During the evidence session held at Holyrood in September 2013 - Moi Ali provided a first hand, honest and highly detailed account of the workings of Scotland’s judiciary and lack of judicial transparency & accountability.

Current JCR Gillian Thompson OBE gave further support for the plan to create a register of interests for judges during an evidence session with msps at Holyrood in June 2015.

Scotland’s top judge Lord Gill did not take kindly to the transparency proposal – or the public debate around openness and accountability of the judiciary. 

Gill branded the media & court users as “aggressive” and demanded judges be allowed to keep their wealth and connections to big business – a secret.

Lord Gill then refused two invitations to appear before MSPs to face questions on his hostility towards judicial transparency.

The top judge – who took increasingly aggressive positions in his hard line letters to Holyrood - also hinted he may have to reconsider how judges interact with the Scottish Parliament and claimed loopholes in the Scotland Act prevented elected politicians from calling judges to account over their hidden interests.

Previous Lord President & Lord Justice General Lord Hamilton – who was highly respected while in the role as Scotland’s top judge - joined the UKSC supplementary panel after his retirement as Lord President in 2012. Lord Hamilton has not yet sat on the panel.

In stark comparison to Lord Gill’s anti-judicial transparency policy, Lord President Lord Hamilton moved to increase transparency around judicial expenses & travel during 2010 after law journalists from Diary of Injustice – the previous version of this law blog - submitted freedom of information requests asking for judicial expenses (routinely published in England & Wales) to be made available in Scotland. 

The FOI request was made to the Scottish Courts Service under the then Lord President Lord Hamilton - after the Scottish Government denied any figures existed for judicial expenses.

Some weeks after the DOI report on judicial expenses, featured in August 2010 - expenses claims of high earning Scots judges rake in at least £78K in ‘travel’ claims, Lord Hamilton amended Scottish Courts policy to publish judicial expenses figures on a quarterly basis.

The welcome move by Lord Hamilton was featured in a further article here: Part-time Sheriffs beat full-time colleagues & senior judges in expenses claims as Scots judiciary finally publish judicial expenses online.


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 waged an aggressive campaign against 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.”

As  Scotland’s top judge continued to oppose 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 along with  video footage & the official record, here: Debating the Judges & here : 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 Justice Diary 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


Anonymous said...

They probably took him in to make sure there is no call to declare judges interests at the Supreme Court or in England and Wales

Anonymous said...

Sent off to UKSC to take care of appeals from Scotland no doubt

Anonymous said...

Brian Gill junior is no stranger to the Supreme Court.

He & Richard Keen QC (Now Attorney General for Scotland) represented tobacco companies against the ban on cigarette advertising (and lost)

Imperial Tobacco Ltd v The Lord Advocate (Scotland)
Source: All England Reporter
Publisher Citation: [2012] All ER (D) 101 (Dec)
Neutral Citation: [2012] UKSC 61
Court: Supreme Court
Judge: Lord Hope DP, Lord Walker, Lady Hale, Lord Kerr and Lord Sumption SCJJ
Representation Richard Keen QC and Brian Gill (instructed by Pinsent Masons LLP) for the claimant.
James Mure QC and Anna Poole QC (instructed by Scottish Government Legal Directorate Litigation Division) for the Lord Advocate.
Lord Wallace of Tankerness QC, Alisa Carmichael QC and Jonathan Swift QC (instructed by Office of the Advocate General for Scotland) for the intervening party.
Judgment Dates: 12 December 2012

Practice - Devolution issues - Scotland - Claimant tobacco company claiming that legislation restricting sale of tobacco products in Scotland outside legislative competence of Scottish Parliament - Whether legislation relating to specific reservations in list of matters reserved to UK Parliament - Whether legislation effectively amending law on reserved matters - Tobacco and Primary Medical Services (Scotland) Act 2010.
The Case

Practice Devolution issues. The Supreme Court considered a Scottish case concerning the legislative competence of the Scottish Parliament. The claimant tobacco company contended that and of the Tobacco and Primary Medical Services (Scotland) Act 2010 were outside the Parliament's legislative competence. Those sections prohibited the advertising of tobacco products where they were offered for sale, and the use of vending machines for the sale of tobacco products. The Supreme Court held that, on the true construction of the legislation, ss 1 and 9 of the 2010 Act were within the legislative competence of the Parliament, and dismissed the claim.

Anonymous said...

What?No fawning tribute and leg up for HM the judge in the lawyers favourite rags?!

I'd have thought at least a state banquet and bowing of Westminster parly for the elevation of Lord Gill to the UK supreme gas guzzling court of last rigging sorry I mean resort!

Anonymous said...

It will be interesting to see if Gill is called (or chooses) to sit on UKSC cases - compared to his predecessor Lord Hamilton who as you rightly point out has not sat at UKSC to-date.

Of interest your comparison between Lords Hamilton and Gill on the expenses/transparency issue.Brian Gill may be Scotland's longest serving judge however Lord Hamilton appears more in tune with the times.

Anonymous said...

Stunning duplicity and double dealing as we should expect from the legal fraternity.They live to play both side of the fence for as much money as they stuff into their pockets while stuffing the rest of us.

Anonymous said...

I would have thought that 2 years was long enough for the judiciary to re-allocate (i.e. hide) their investments beyond prying eyes.

MSPs must make the Petition law now! - regardless of what 'Nik-la', McAskill and others legal insiders in the SNP want.

Anonymous said...

So Gill is off to sit on the same court Salmond & MacAskill slagged off as being anti-Scottish just because time was called on cops interviewing suspects without a lawyer present..

Alex Salmond provokes fury with attack on UK supreme court

Severin Carrell, Scotland correspondent

Wednesday 1 June 2011 18.28 BST

Alex Salmond has provoked a furious row with senior legal figures after launching a series of attacks on the authority of the UK supreme court and the competence of its two Scottish judges.

The first minister and his justice secretary, Kenny MacAskill, accused the court of "intervening aggressively" in Scotland's independent legal system after it ruled that the Scottish system had twice breached the European convention on human rights in significant criminal cases.

The Scottish cabinet decided on Monday to set up an expert legal group to urgently consider how Salmond's government can block the supreme court from its oversight of criminal cases.

At the same time, it emerged that MacAskill wants to stop paying Scotland's £478,000 annual share of the court's running costs. Earlier this week, he said most supreme court judges' only knowledge of Scotland was through attending the Edinburgh festival.

Salmond intensified the row by criticising Scotland's senior judge on the supreme court, Lord Hope, who is widely regarded as one of Scotland's finest lawyers and is a former lord justice general of Scotland. He was an appeal judge in the House of Lords before becoming the deputy president of the supreme court.

Speaking on Newsnight Scotland on Tuesday, Salmond questioned why Hope had the individual authority, sitting as one of Scotland's two judges on the supreme court, to overrule decisions made by, in one case, seven Scottish appeal court judges.

"I don't think it's sensible, fair or reasonable in any jurisdiction where we've a situation where one judge is overruling the opinion of many judges in another court," he said.

"It boils down to the potential replacement of Scottish law by Lord Hope's law. I don't think that's a satisfactory situation."

Senior legal figures are dismayed by the personalisation of the dispute, largely because Salmond will be aware that one of the two Scottish judges on the supreme court, Lord Rodger, is extremely ill and is unable to defend himself. One senior legal figure said he "deplored" the SNP leader's personal attacks.

Rodger, a former lord advocate and ex-lord justice general, was too unwell to deliver the latest supreme court decision relevant to Scotland. Two Scottish judges, Lord Clarke and Lord Reed, are being drafted in to hear Scottish cases in his absence.

There are doubts over whether he will be well enough to return to the supreme court.

Lord Wallace, the advocate general, the Scottish law officer for the UK government and a former Scottish justice minister, warned ministers in Edinburgh against trying to influence the court. He said Salmond and MacAskill had been using "unhelpful" rhetoric since the row erupted.

He added: "As a lawyer I feel strongly that a fundamental pillar of our society is the rule of law and the independence of the judiciary is central to that. Surely Scottish ministers are not telling the courts what to do when they talk about pipers and tunes? I certainly hope not."

The supreme court had only limited powers over Scottish criminal cases, purely covering human rights and EU law, he said. It only rarely heard Scottish cases: twice since it was set up. Its predecessor, the privy council, heard only 11 criminal appeals in 11 years.

Anonymous said...

it says on that website judges on the court should not have reached 75 by the time of their appointment

So they just managed to squeeze Gill in as he is already 73

39Supplementary panel
(1)There is to be a panel of persons known as the supplementary panel.
(2)On the commencement of this section any member of the House of Lords who—
(a)meets one of the conditions in subsection (3),
(b)does not hold high judicial office,
(c)has not attained the age of 75, and
(d)is not a person who was appointed to the office of Lord Chancellor on or after 12 June 2003,becomes a member of the panel.
(3)The conditions are—
(a)that he ceased to hold high judicial office less than 5 years before the commencement of this section;
(b)that he was a member of the Judicial Committee of the Privy Council immediately before that commencement;
(c)that he ceased to be a member of that Committee less than 5 years before that commencement.
(4)A person becomes a member of the supplementary panel on ceasing to hold office as a judge of the Supreme Court or as a senior territorial judge, but only if, while he holds such office—
(a)his membership of the panel is approved in writing by the President of the Supreme Court, and
(b)the President of the Court gives the Lord Chancellor notice in writing of the approval.
(5)Subsection (4) does not apply to a person who ceases to hold office as a judge of the Supreme Court when he ceases to be President of the Court.
(6)Such a person becomes a member of the supplementary panel on ceasing to be President of the Court, unless—
(a)while President, he gives the Lord Chancellor notice that he is not to become a member of the panel,
(b)he ceases to be President on being removed from office as a judge of the Court on the address of both Houses of Parliament, or
(c)his office is declared vacant under section 36.
(7)A person does not become a member of the supplementary panel under subsection (4) or (6) if—
(a)on ceasing to hold office as a judge of the Supreme Court he takes office as a senior territorial judge, or
(b)on ceasing to hold office as a senior territorial judge he takes office as a judge of the Supreme Court.
(8)A member of the supplementary panel may resign by notice in writing to the President of the Court.
(9)Unless he resigns (and subject to sections 26(7)(b) and 27 of the Judicial Pensions and Retirement Act 1993 (c. 8)), a person ceases to be a member of the supplementary panel—
(a)at the end of 5 years after the last day on which he holds his qualifying office, or
(b)if earlier, at the end of the day on which he attains the age of 75.

Anonymous said...

Until now I did not know Lord Hamilton was one for transparency and did what you wrote about in the earlier articles on judicial expenses.
Taking the order of events he sounds streets ahead of his successor Gill although you could argue Gill's outright hostility to the msps you the press and everyone else on the interests debate gave the whole idea a massive boost.
Gill must regret some of what he wrote to the parliament.As you say the letters are very aggressive,almost hysterical as one of the msps said in one of the video clips.Some paras of Gill's correspondence read like desperate personal attacks to put the hounds off the scent.It is time we have your judicial register put into legislation regardless of resistance from the elderly elite of the judiciary and their supporters in the legal world.

Anonymous said...

On the subject of gifts and interests in the medical profession.I imagine much the same kinds of payments go on in the legal and judicial fraternity?

Campaigners call for action after report reveals drug firms gave NHS staff £41m last year

10:04, 6 September 2015
By Marion Scott

PSYCHIATRIST Peter Gordon is urging the Government to clamp down on big pharmaceutical companies and says doctors who fail to declare payments should be prosecuted.

Report shows NHS drug buyers are being unduly influenced by pharmaceutical sales reps

DOCTORS who fail to declare payments from drug firms should face prosecution, a leading campaigner has claimed.

Consultant psychiatrist Peter Gordon has warned Scotland faces falling behind England and Wales after UK Health Minister Jeremy Hunt announced new legislation tightening restrictions around relationships between doctors and drug firms.

The move was announced after a report showed NHS drug buyers were being unduly influenced by sales reps from pharmaceutical firms.

Peter, who has been lobbying the Scottish government for a register of interests for over four years, said: “Pharmaceutical firms paid over £41million to healthworkers and doctors across the UK last year, it would be silly not to believe some of that would have been spent here in Scotland.

“The public have a right to know what that money was for and who received it,
particularly when those involved were influencing what treatments and
medications are used in our hospitals and sugeries.”

He added: “I’m not a whistleblower but I am someone who believes the drugs, medications and treatments doctors use to help patients must be chosen on the basis of scientific evidence, not advertising.

“I could spend forever listing heavily advertised and promoted drugs and treatments hailed as the next best thing only for them to be withdrawn when it was shown they caused harm. That’s what we have to protect against. Transparency is the only way forward.”

An investigation in July revealed health staff in England who help choose drugs for the NHS were paid to work as consultants to pharmaceutical firms.

It found some NHS managers were charging up to £15,000 to organise meetings, sometimes in luxury hotels.

Consultant psychiatrist Peter Gordon

So far there has been no major evidence of corrupt practice in Scotland. The Scottish Government say as regulation of doctors is a reserved matter, they are seeking guidance on how legislation will work here.

Health Secretary Shona Robison said: “The reports of the behaviour of some NHS staff in England were appalling and it’s right that these are being thoroughly investigated.

“We are not aware of any similar tactics being used in Scotland and the different systems we have in place are designed to prevent such abuses.

“However the Scottish Government has already been clear that we are open to considering any further changes beyond the current framework to ensure patients trust that decisions are being made on the basis of their best interests.”

The Association of the British Pharmaceutical Industry say they have introduced tough rules which mean gifts of pens and goods advertising products are no longer allowed, and from next year, they will have a publicly accessible register.

Aileen Thompson, from the ABPI, said: “From next year all payments to individuals by our members for consultancy fees, travel, education, or anything else will be made available.

“We’ve been working with doctors and healthcare workers to encourage participatation. They can choose not to have personal details published under data protection rules.

“Although we will still list financial payments made by any of our UK-based members, where anonymity is requested, it will be as an aggregate figure.”

Anonymous said...

I was aware of your involvement in the publication of judges expenses at the time however I note under Lord Gill the quarterly publication schedule initiated by Lord Hamilton slowed to a crawl.
It was rumoured the Judicial Office were looking for a way to quietly dump the publication scheme due to bad press on judges junkets and chauffeur driven cars to court.

Anonymous said...

Ironic the judge who has most likely done the most to alienate the judiciary from the remainder of the population by way of his attacks against judicial transparency now finds himself on the Supreme court.

Justice Diary said...

@ 5 September 2015 at 16:03

True, however the debate on its own has generated a lot of intel on discreet and unregistered financial positions which have been altered in those last two years. These matters can be reported along with attempts by the judiciary to evade transparency as time goes on ...

@ 5 September 2015 at 16:53

Good point

@ 6 September 2015 at 17:11

Yes, much the same types of influence, size of financial transactions and lobbying occurs in the legal profession, courts and judiciary. It escapes declaration as there is currently no register of judicial interests or lobbying register.

@ 7 September 2015 at 10:43

Transparency is not hot on the list of the judiciary as Lord Gill demonstrated by his reactions to the Scottish Parliament.

Anonymous said...

Lord No-No goes to London and no doubt many other unannounced positions like some ex politicians

Anonymous said...

Good news for you because now you can write about the Supreme Court and how shifty they are and how they also hide their interests!

Justice Diary said...

@ 8 September 2015 at 15:00

Good idea.

Plenty of intel comes in relating to UK judges as well as the Scottish judiciary so can use as time goes on ...