EIGHT LETTERS, M’LORD: Top judge who branded media & public ‘aggressive’, declared judicial transparency ‘unworkable’ - will finally give evidence to Holyrood probe on judges’ interests register

Lord Gill to finally face MSPs probe on judicial interests. SCOTLAND’S former top judge who spent two of his three year term as Lord Justice General waging a bitter fight against proposals to create a register of judges’ interests - will appear before MSPs tomorrow - Tuesday 10 November 2015.

Lord Brian Gill (73) – Scotland's longest serving judge who suddenly retired in May 2015 - after serving three years as Lord President & Lord Justice General, will finally give evidence to Holyrood’s Public Petitions Committee on proposals to require judges to declare their financial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The proposals, widely backed by MSPs after the issue was debated in the Parliament’s main chamber last October 2014 - Debating the Judges - call for 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.

Although Gill refused two previous invitations to appear before the Public Petitions Committee –  the top judge did not shy from lengthy written tirades against the Scottish Parliament’s curiosity on why judges are so protective of their undeclared interests.

In a total of eight letters spanning the better part of Lord Brian Gill’s tenure as Lord President, the top judge hit out against everyone from politicians to the media amid calls for judicial transparency and a register of judicial interests.

At one point, Gill branded the media, court users, public & litigants as “aggressive”.

And, in between Lord Gill’s global jet setting taxpayer funded tours including a five day visit to Qatar - the top judge pointedly wrote to the Public Petitions Committee implying he may consider withholding judicial cooperation with Scottish Parliament committees if he was pushed on the matter.

WHEN EIGHT LETTERS TOLL – Letters from a Lord President:

Lord Gill's first letter of 5th February 2013 to the Public Petitions Committee put the top judge’s views squarely against the creation of a register of judicial interests.

Transparency good for everyone else, except judges - Lord Gill wrote of his disdain for equal application of transparency to judges: “The petition appears to proceed on an apparent misconception that equal treatment in terms of disclosure obligations of each of the three branches of Government is desirable. The three branches have significantly different roles to perform. The judicial role requires independence and impartiality in relation to the individual case which the judge has to decide. In this context, tire potential for conflict of interest or apparent bias extends beyond pecuniary interests alone. The judge's duty of disclosure is more far-reaching than a bare listing of particular pecuniary interests identified by legislation as warranting disclosure. For example, a judge's disclosure duties, as set out in the Statement of Principles of Judicial Ethics, will extend to material relationships.”

Oaths & handshakes run the courts, not transparency – says top judge.

Lord Gill claimed there was no need for transparency because judges are subject to oaths and rules - written, and approved by - judges.

Lord Gill wrote: “Another reason why there is no practical need for this measure is that there are currently sufficient safeguards to ensure that judicial impartiality is maintained. The current safeguards in place in Scotland are established by the terms of the Judicial Oath, the Statement of Principles of Judicial Ethics for the Scottish Judiciary and the Judiciary and Courts (Scotland) Act 2008.”

Giving an indication of the sheer scale of undeclared judicial interests, Lord Gill admitted Judges have so many interests & earnings, it would be impossible to list them all.

Gill wrote: “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.”

Lord Gill claimed those seeking judicial transparency must be aggressive. The top judge wrote: “The introduction of such a register could also have unintended consequences. Consideration requires to be given to judges' privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician.

Lord Gill went onto claim if transparency were applied to the judiciary, this would make it impossible to recruit judges.

Lord Gill wrote: “The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.”

After further enquiries from MSPs who issued the top judge with invitation to give evidence before the Scottish Parliament, Lord Gill wrote a second letter of 2 April 2013 to the Public Petitions Committee.

In his letter, Lord Gill claimed that since European judges did not disclose their vast interests, neither should Scottish or UK judges.

Gill wrote: ““In my written evidence I referred to the Council of Europe Group of States against Corruption's (GRECO) Fourth Evaluation Round Report, which was then unpublished. This report has just been published.”

Eager to avoid giving evidence in public and facing questions on why judges wealth & interests must remain a secret, Lord Gill also refused to attend and give evidence.

The top judge wrote: “I hope that you will not think it discourteous of me to decline your invitation. As your fellow members noted in their discussion, I have provided a detailed response. On reflection, I think that I could not add any material points to the terms of my response.”

The unprecedented move by Lord Gill to refuse an invitation to give evidence before the Scottish Parliament and face questions from MSPs was widely condemned and featured in several media reports.

Lord Gill’s third letter of 28 May 2013 to the Public Petitions Committee refused a second invitation to appear before MSPs.

The top judge clearly did no wish to account for his opposition to the creation of a register of judicial Interests.

In his letter to Committee Convener David Stewart, Lord Gill implied he may have to restrict judicial cooperation with Scottish Parliamentary Committees.

Gill wrote: Judges have from time to time given evidence to committees of the Scottish Parliament on matters that affect the administration of justice in Scotland. I hope that that has been helpful in the legislative process. Judicial participation in the work of the committees must however be kept within prudent limits.”

The top judge went on to claim loopholes in the Scotland Act prevented members of the judiciary being called to give evidence before MSPs.

The top judge said in his letter: “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.”

“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.”

Venting his frustration with the Scottish Parliament’s investigation, Gill went on to write: “In my correspondence with you I have set out carefully why I believe that a register of interests for the judiciary is both unnecessary and unworkable. I have directed you to an independent scrutiny of the judiciary in the United Kingdom that has on two occasions considered and rejected the need for such a register.”

Following on from an unprecedented private meeting between the Convener & Deputy Convener of the Public Petitions Committee and the Lord President, Lord Gill’s fourth letter of 21 February 2014 took up the subject of judicial recusals.

The top judge announced in his letter his staff had devised a method for listing recusals of judges in cases where an interest of a judicial figure meant they could not hear the case.

The information accumulated from judicial recusals would also be regularly published – a first in Scotland.

Lord Gill wrote: “When we met on you asked me to consider whether it would be possible to make publicly available information about cases in which a judge or sheriff formally recuses him or herself from hearing a case.”

“I am pleased to say that my officials have devised a means by which this can be achieved. Court Clerks will inform the Judicial Office for Scotland when a judge or sheriff has to recuse. The reason for recusal will be provided. The fact of recusal and the reason for it will appear on the Judiciary of Scotland website (http://www.scotland-judiciary.org.uk).

“I intend to commence the collection of information from 1 April 2014 to give time for the administrative arrangements to be put in place. The website will be updated as notification of recusal is received.”

Lord Gill’s fifth letter of 5th June 2014 took an abrasive tone.

The top judge set out to challenge the views of Scotland’s first Judicial Complaints Reviewer – Moi Ali – who supported the introduction of a register of judicial interests.

Clearly angered by wider support for a register of judicial interests, Lord Gill wrote in his letter: “I do not share Ms Ali's view that a register of interests is essential, I do not believe that such a register is necessary. I set out my views in my letter to you of 5 February 2013. My views remain the same.”

Gill also claimed there was no evidence of public concern about the judiciary: “Ms Ali suggests that a failure to institute a register of judicial interests will create suspicion, and that this will in turn undermine judicial credibility. I am not aware of any recent evidence that there is public concern about the integrity of the judiciary. In my view the terms of the judicial oath, the Statement of Principles of Judicial Ethics and the provisions of the Judiciary and Courts (Scotland) Act 2008 for the regulation of judicial conduct are effective safeguards that enjoy public confidence.”

The exasperated top judge also had a go at suggestions the rules on judicial complaints were not fit for purpose.

Gill wrote: “The Judicial Complaints Reviewer suggests that the rules about complaints against the judiciary - the Complaints about the Judiciary (Scotland) Rules 2013 - are not fit for purpose. I disagree. Our experience of operating the Rules, since they were introduced in 2011, is that they provide a system for review that effectively filters out complaints that are without substance, while providing an effective hearing mechanism in others.

The unconvincing two page letter from the top judge disagreed with every single point raised by the JCR on transparency and judicial interests. Gill even opposed the Judicial Reviewer’s views on a clean up of the rules around judicial complaints.

In a sixth letter from Lord Gill to the Public Petitions Committee, dated 1st April 2014, the top judge, annoyed by questions over why an existing register of interests for Scottish Court Service Board members could not be applied to the entire judiciary, claimed there were different factors at play.

Again, an abrasive tone by the top judge featured in his written comments to MSPS.

Lord Gill said: “I have carefully set out for the Committee my reasons for believing that a register of interests for members of the judiciary is unnecessary. My view is shared by the Scottish Government, the UK Government, and the Chief Justices in the other jurisdictions of the UK. It is a view that has been endorsed by external international scrutiny through the work of Council of Europe's Group of States against Corruption (GRECO) in its evaluation reports in 2001 and 2014.”

The position of the judicial office holders on the board of the SCS is entirely different. The requirement of those judicial office holders who are members of the SCS to register their interests arises in the context of their membership of a public body. The disclosure of their interests arises from their work as board members, which may involve the placing of contracts and employment questions. It is not related to their holding judicial office. As members of the SCS they do not exercise judicial functions.”

Lord Gill again pointed to the lack of declarations of European judges as an example allowing members of Scotland’s judiciary to withhold any information of their wealth, business links & interests from public disclosure.

The seventh letter from Lord Gill to the Public Petitions Committee, dated 21 November 2014 – furnished MSPs with details of judicial recusals.

The top judge gave three examples of recusal matters in his letter to MSPs.

Lord Gill wrote: “The first group of cases are cases where judges or sheriffs realise, in advance of the hearing, that they have a personal interest in the case or have had some personal connection with a party or a witness and, without further ado, recuse themselves. This is by far the most common situation.”

“The second category are cases where judges or sheriffs realise that there is some factor in the case of which the parties may be unaware, that, while not necessitating recusal, might nevertheless cause them concern. In such situations, the appropriate procedure is for the judge or sheriff to draw the matter to the attention of the parties either before or at the outset of the hearing and invite their comments. If either party should suggest that the judge or sheriff should withdraw from the case, it will then be for the judge or sheriff to decide whether or not to withdraw. The legal principles affecting that decision are well established. In cases of this kind, it cannot be said that the judge or sheriff is recusing as a result of representations made by the bench. In reality, the recusal arises because of the initiative of the judge or sheriff in bringing the matter to the notice of the parties.”

“The third situation that could arise is where a judge or sheriff who has an interest that would justify recusal says nothing about it and thereafter has to recuse himself or herself when a party raises the matter. We have no record of any instance of this.”

Notably, not one recusal involved any disclosure of a substantial interest of a judicial figure.

And, underlying the lack of credibility of the current recusals register - not one financial or property related interest recusal of judges who earn up to £220K a year was provided to MSPs.

The eighth letter from Lord Gill to the Public Petitions Committee, dated 1 April 2015, was an eighty seven page summary on changes in the rules on judicial complaints – changes already branded window dressing by the media.

Again, fearing public questions from MSPs, Gill consigned himself to written claims the rules changes were a development after a consultation, conducted by Lord Gill himself.

Gill wrote: “I am pleased to inform you that we have today published the new Complaints About the Judiciary (Scotland) Rules 2015 and associated guidance. As you know the new Rules and guidance were developed following a consultation on the Rules. I also enclose my official response to the consultation and associated documents.”

“The new Rules and guidance for complainers simplify and streamline the process for dealing with complaints and make clear the matters that can properly be investigated.”

However, Moi Ali – Scotland’s first Judicial Complaints Reviewer criticised the rules as lacking.

Ms Ali said: “I conducted a detailed consultation of my own when I was Judicial Complaints Reviewer, speaking with those who had used the complaints process. They deemed it unfit for purpose at that time.”

Ms Ali continued: “I am disappointed that the thrust of my response to the Lord President, based on that feedback from ordinary Scots, has not been incorporated. I asked for more user-friendly, plain English Rules, but this has not happened. I also hoped that a mindset that welcomed complaints and recognised the genuine value of encouraging complaints would have shaped the new Rules, but instead the inbuilt deterrent to complainers remains. The new Rules are an opportunity missed.”

A few weeks after Lord Gill’s last letter to the Public Petitions Committee, Gill retired as Scotland’s top judge at the end of May.

During a meeting of the Public Petitions Committee in May, the outgoing top judge was chastised by MSPs for his role in protecting the vested interests of the judiciary.

Jackson Carlaw MSP (Scottish Conservative) commented during the Committee hearing: “I understand that the Lord President is due to retire in due course, and we will wish him well. He will leave knowing that he has managed to protect all the vested interests that he has so assiduously sought to represent in the conduct of this petition. As we will be hearing from Gillian Thompson, who is new to her position, it may even be that there will be more enlightened engagement with the Lord President’s successor, so I am all for keeping the show on the road.

On the conclusion of an evidence session at the Scottish Parliament in late June 2015 with Gillian Thompson, the new Judicial Complaints Reviewer – Lord Gill was invited for a third time to attend the Public Petitions Committee and give evidence on his opposition to judicial transparency and a register of judges’ interests.

Convener of the Scottish Parliament’s Public Petitions Committee, John Pentland MSP commented: “The question for the Committee is this: is it reasonable for the ordinary man and woman to expect transparency from our judges in their dealings and their interests? Gillian Thompson, the new Judicial Complaints Reviewer believes it is, and echoed the views of her predecessor when she gave evidence to the Committee.”

Mr Pentland continued: “The Committee will continue to consider what further work could be done to increase transparency. It was unfortunate that Lord Gill felt it was inappropriate to give evidence while he was Lord President of the Court of Session, But as he has now stepped down from his role, the Committee has agreed to extend another invitation to him to discuss his perspective on this important topic. We also look forward to inviting the new Lord President to give evidence to the Committee, once they are in post.”

It was recently revealed Lord Brian Gill emerged from his brief summer retirement - taking up an appointment as a supplementary panel judge at the London based UK Supreme Court.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations on judicial interests 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