MSPs hear calls to invite UKSC President Lady Hale to Holyrood. A FIVE YEAR Scottish Parliament investigation of Petition PE1458: Register of Interests for members of Scotland's judiciary has received further submissions - calling for MSPs to invite Baroness Hale to give evidence at Holyrood.
Calls for Lady Hale - President of the UK Supreme Court (UKSC) - to be invited to appear before the Scottish Parliament - come on the back of evidence presented to MSPs on the lack of transparency relating to recusals in UK’s top court – which also serves Scotland as the court of last resort.
While courts in Scotland now publish details of judicial recusals – where judges stand down from cases due to a conflict of interest – the UK Supreme Court has refused to take on this extra transparency measure.
Transparency campaigners cite the Supreme Court’s refusal to publish recusals as creating an imbalance in transparency with a court based in London which Scots based litigants & accused persons must still rely on for a right of appeal.
Submissions filed with the Scottish Parliaments Public Petitions Committee also urge MSPs to quiz Lady Hale on the current stance of the UK’s top court on declarations of judicial interests in a publicly available register – a move currently opposed by the Supreme Court according to policy currently posted on the UKSC’s website.
A supplementary submission lodged earlier this week also reveals major concessions from the Judicial Office for Scotland after discussions between the petitioner and the Head of Strategy and Governance at the Judicial Office.
MSPs have been made aware an agreement has been reached where up to five hundred Justices of the Peace are now to be included in the Register of Judicial Recusals – created by ex Lord President Brian Gill in February 2014 – in response to meetings with MSPs on Petition PE1458.
However, the submission asks MSPs to seek answers on why Justices of the Peace – who comprise the bulk of Scotland’s judiciary – were excluded from the recusals register when it was set up in April 2014.
An additional concession from the Judicial Office passed to MSPs also reveals that recusals which take place on the many tribunals under the wing of the Scottish Courts and Tribunals Service (SCTS). will be published at a date yet to be decided.
MSPs have also been asked to consider calling Ian Gordon – the new Judicial Complaints Reviewer (JCR), who took over from Gillian Thompson and hear his views on declarations of judicial interests.
Both previous Judicial Complaints Reviewers – including well known transparency campaigner Moi Ali – fully support the petition calling for the creation of a register of judicial interests in Scotland.
A full report on Moi Ali’s evidence to MSPs and support for proposals calling for the creation of a register of judicial interests is reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.
Meanwhile it can be revealed written evidence of failures to declare interests at the UK’s top court has been passed to journalists and MSPs for study.
The material, identifies a judge who took part in a case in the Court of Session on multiple occasions who then took a seat on the Supreme Court – and knocked back an appeal from the same case he had ruled on, without declaring any former interest in the case after blocking the route of appeal.
Later today, members of the Scottish Parliaments Public Petitions Committee will consider the request to call Lady Hale and obtain more answers on judicial recusals.
UK SUPREME COURT: MOST POWERFUL, NOW LEAST TRANSPARENT:
The current stance of the UK Supreme Court has previously been used by judges in Scotland to avoid creating a register of judicial interests in response to the cross party supported petition still under investigation at the Scottish Parliament.
Background: Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.
On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.
Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.
Current position: Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.
In addition all the Justices have taken the Judicial Oath - and they all took it again on 1 October 2009 - which obliges them to "do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will"; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case - whether a substantive hearing, or an application for permission to appeal.
The latest submissions filed with the Scottish Parliament’s Public Petitions Committee in relation to Petition PE1458: Register of Interests for members of Scotland's judiciary are reprinted below:
Noting Baroness Hale’s recent comments in relation to the appointment of judges (Let ministers pick judges, says Supreme Court chief Baroness Hale, The Times, 23 August 2017) and other matters, I request Baroness Hale be invited to give evidence before the Petitions Committee.
As the President of the UK Supreme Court, Baroness Hale will be able to give a substantive account of why UKSC Judges no longer consider they require to adhere to the expectation of completing a register of interests as they did pre-UKSC days as Law Lords in the House of Lords.
Members may also wish to raise questions to Baroness Hale on the disparity of judicial transparency between Scotland and UKSC on judicial recusals, where as members are aware, the Judiciary of Scotland now list details of recusals, compared to the UKSC in London - where this information has not yet been made available to all UK users of the Supreme Court.
The position of the UKSC on the current lack of a register of judicial interests has entered Committee discussions on numerous occasions, and in evidence. Lady Hale’s appointment as President would be a significant opportunity for this Committee to hear from the top UKSC judge on a court which also serves the interests of Scotland.
Lord Carloway evidence to Petitions Committee 29 June 2017: In response to evidence given by Lord Carloway to members I note Lord Carloway claims the creation of a register of interests would deter recruitment of candidates to become judges.
In no other walk of life including politics - does the existence of a register of interests deter recruitment of individuals to a profession or industry. A register of interests is designed to promote accountability and transparency. If someone were to be deterred from a job due to the existence of a register of interests there would quite properly be questions on why transparency would hinder someone from applying for a position of such authority, power - and - responsibility to serve the community.
Lord Carloway stated the critical distinction for judges in this case is that the judiciary require to be independent of any form of government - a point no one or this petition is questioning.
However, and to quote Scotland’s first JCR Moi Ali in a letter to the Petitions Committee of 23 April 2014 “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.”
To add to Ms Ali’s comments, members will be aware a decision by the judiciary can effectively revoke an item of legislation created by the Scottish Parliament, or the House of Commons if a legal challenge in court to a law is successful. Examples of such cases - including HMA V Cadder - have occurred over recent years, requiring emergency legislation to address issues of successful judicial challenges.
One branch of the Executive which can overturn legislation from another branch, or our elected Parliaments, clearly requires the same implementation of transparency as the other.
In light of the judiciary’s position as the most powerful branch of the Executive - and their considerable effect on public life, policy and legislation, an equivalent, or even greater level of transparency is required to be applied to the judiciary by way of creating a register of judicial interests.
In his evidence, Lord Carloway goes on to claim a register of judicial interests should only be created if the judiciary detect corruption within it’s own ranks.
This is not a credible position in terms of public expectation of transparency in 2017.
Registers of interest exist to ensure transparency and accountability in public life and there is now clearly a requirement for members of the judiciary to declare their interests as practiced by all others in public life.
In conclusion of Lord Carloway’s evidence, I note the Lord President was unable to provide a single legitimate example of harm caused to the judiciary by the creation of a register of interests, nor one single reason why the judiciary should be exempt from the same levels of public transparency which rightly apply to everyone else.
There is cross party backing for the creation of a register of judicial interests, as has already been demonstrated at Holyrood during the motion debate of October 2014, and widespread support in the media and public, and from both Judicial Complaints Reviewers for judges to be required to declare their interests.
Creating a register of interests for members of Scotland’s judiciary is the right thing to do.
Members will also be aware of the appointment of a new Judicial Complaints Reviewer - Mr Ian Gordon, formerly the Convener of the Standards Commission for Scotland.
Mr Gordon’s appointment, along with concerns from the outgoing JCR Gillian Thompson, and calls for a review of the role and powers of the JCR - were reported in the Sunday Herald (Calls for more funding as new judicial watchdog appointed, Sunday Herald, 15 August 2017).
As Mr Gordon is well versed in standards, and public expectation of transparency, I ask the Committee call Mr Gordon to give evidence on his experience in relation to standards in public life, and any thoughts he may have as the new Judicial Complaints Reviewer - with regards to the creation of a register of judicial interests.
Members may also wish to note the retiring JCR - Gillian Thompson who gave evidence to the Committee in July 2015 has published information in her 2014/15 annual report in relation to her continued support for this petition, which available on the JCR’s website here: Judicial Complaints Reviewer Annual Report 2014-2015
All annual reports from the Judicial Complaints Reviewer including those from Moi Ali, are available here: Judicial Complaints Reviewer - Annual Reports
In light of the progress on this petition, public interest, and public debate, I would like to encourage this Committee to begin discussions with other Committees to determine which is the best way to advance this petition forward.
There is now five years of work, from MSPs, Public Petitions Committee members past & present, PPC clerks, two Judicial Complaints Reviewers, Parliamentarians from other iurisdictions, legal academics, submissions from members of the public, wide support in the media and across the spectrum of politics & public for the implementation of a register of judicial interests.
This team effort should rightly culminate in what will be a significant gain for the justice system, judiciary and courts - in terms of transparency and accountability, and a gain for this Parliament in creating the legislation to bring about such judicial transparency, and increase public confidence in our courts.
Finally, as Lord Carloway raised the subject of problems in judicial recruitment if a register is created, I urge the Committee write to the Sheriff’s Association, the Scottish Justices Association, the Law Society of Scotland and the Faculty of Advocates on this particular subject, seeking their views in writing, so these issues can become a matter of public record in this debate.
During the creation of the Register of Judicial Recusals in 2014, some 400 plus members of the judiciary - Justices of the Peace - were excluded from the register for no apparent reason.
Recent communications with the Judicial Office and further media interest in the petition[has prompted the Judicial Office to finally include Justices of the Peace in the Register of Judicial Recusals - with a start date of January 2018.
This follows an earlier development after Lord Carloway gave his evidence to the Committee, where the Judicial Office agreed to publish a wider range of details regarding judicial recusals, A copy of the revised recusal form for members of the Judiciary has been provided by the Judicial Office and is submitted for members interest.
Additional enquiries with the Judicial Office and further media interest on the issue of Tribunals which come under the Scottish Courts & Tribunals Service (SCTS) and Judicial Office jurisdiction has produced a further result in the Judicial Office agreeing to publish a register of Tribunal recusals.
I urge members to seek clarification from the Judicial Office and Lord President on why Justices of the Peace, who now comprise around 500 members of the judiciary in Scotland, were excluded from the recusals register until now - as their omission from the recusals register has left a distorted picture of judicial recusals in Scotland.
Since my earlier submission of 4 September, the Scottish Courts & Tribunals Service has published their Annual Report, which contains a Register of Interests for SCTS Board members, including several members of the judiciary, available here: Scottish Courts & Tribunals Service Annual Report 2016-2017
While the register exists for a handful of judges who sit on the SCTS Board - including Lord Carloway, and does include further detail on some financial holdings of the judiciary, as provided by the Judicial Office SCTS Board shareholdings register - there is clearly a format by which this same register, with enhanced requirements of disclosure as appear in other jurisdictions, could be applied to all members of Scotland’s judiciary.
Finally, I wish to draw attention to members of the status of the Norwegian Register of Judicial Interests, which is a very comprehensive register, and could well be used as a template for a similar register of judicial interests in Scotland.
The Norwegian register of judicial interests is available here: Norway - Register of Judicial Interests. I urge members to contact Norway’s judiciary to seek comments on their register of judicial interests, and if necessary invite evidence on Norway’s implementation of such a register and how it impacts on judicial transparency.
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.