COPY MINISTER: ‘Copied’ content from ex Minister sent by Justice Secretary Humza Yousaf to Holyrood MSPs - Public must rely on judges judging judges for transparency, Scottish Government will not create register of judges’ interests

Judges should judge judges – Minister. SCOTLAND’S Justice Secretary – Humza Yousaf – has told Holyrood’s Justice Committee that judges should be allowed to judge themselves, and the public must rely on judicial oaths & ethics – written and approved by the judiciary - instead of transparency in courts.

The Justice Secretary’s letter of 3 April to Holyrood MSPs, which was released only late last week – also states the Scottish Government will not create a register of judicial interests in response to the widely supported Petition PE1458: Register of Interests for members of Scotland's judiciary.

However, it has emerged Humza Yousaf’s letter of April 2019 - is almost a duplicate of a letter sent in April 2014 by Kenny MacAskill during his time as Justice Secretary.

The recent letter from Mr Yousaf to Margaret Mitchel MSP – Convener of the Justice Committee, effectively re-states the Scottish Government’s refusal to create a register of judges’ interests.

Mr Yousaf also claims in his letter that “no further evidence has been provided to the Justice Committee that strengthens the arguments already put forward in favour of the introduction of the register.”

However, recent submissions to the Justice Committee including accounts of serving Scottish judges swearing dual oaths for high earning judicial posts in Qatar, Abu Dhabi and other Gulf States point to substantial new evidence submitted to MSPs, backing up the need for a full register of judicial interests.

Clerks to the Justice Committee were quizzed on the content of Mr Yousaf’s claims in relation to no new evidence.

In response, a Justice Committee clerk told the petitioner: “Your submission was publicly available to the Scottish Government to refer to, before the Cabinet Secretary provided the letter dated 3 April”

It has also emerged the Lord President – Lord Carloway, and others including the Law Society of Scotland, Faculty of Advocates, Crown Office and others have refused to engage with the Justice Committee’s call for views on creating a register of judges’ interests.

A clerk for the Justice Committee informed the petitioner: “Before the Committee last considered your petition on 5 February, clerks approached those who have previously given evidence to the Public Petitions Committee to ask if they had anything to add to their previous submissions.”

“We approached the Lord President, the Crown Office and Procurator Fiscal Service, the Law Society of Scotland, the Faculty of Advocates, the Scottish Courts and Tribunals Service and the Judicial Complaints Reviewer. Only the Scottish Courts and Tribunals Service responded, stating that they had nothing to add”

Mr Yousaf’s letter of 3 April 2019 to the Justice Committee reads as follows:

Thank you for your letter of 20 February seeking my views on the above petition and whether it remains the Scottish Government’s position that a register should not be introduced.

I have given consideration to the matter and I don’t think it is necessary to establish a register of interests. I share the views of both of my predecessors that there are sufficient safeguards in place to ensure the impartiality of the judiciary.

These safeguards are the judicial oath, the statement of principles of judicial ethics and the various rules made under the Judiciary and Courts (Scotland) Act 2008 which concern complaints about the judiciary and judicial conduct.

I note that no further evidence has been provided to the Justice Committee that strengthens the arguments already put forward in favour of the introduction of the register.

However, the “the various rules made under the Judiciary and Courts (Scotland) Act 2008 which concern complaints about the judiciary and judicial conduct” – which include the post of Judicial Complaints Reviewer – remain unchanged since Scotland’s first JCR – Moi Ali gave evidence to the Public Petitions  Committee during 2013.

And, during her time as Judicial Complaints Reviewer – Moi Ali requested increated powers from the Scottish Government – to give the office of JCR a more formidable and independent oversight role on complaints against judges – only to be turned down by the then Justice Secretary - Kenny MacAskill.

The request by Moi Ali to increase powers of the Judicial Complaints Reviewer ws reported here: Scottish Government urged to give more powers to Judicial Complaints Reviewer as MSPs hear lack of judicial scrutiny undermines public confidence in justice system

An earlier letter of 22 April 2014 from Kenny MacAskill – who was Justice Secretary from 17 May 2007 until ‘stepping down’ sacked from the post on 21 November 2014 - to David Stewart MSP – then Convener of the Public Petitions Committee reads as follows:

Thank you for your letter of 6 March 2014 regarding the above Public Petition. I apologise for the delay in responding.

You ask whether the Scottish Government will review its position on whether members of the judiciary ought to register their interests. I note the evidence the Committee has gathered on this issue and, in particular, the arguments presented by the Judicial Complaints Reviewer (JCR) that a register of interests would increase transparency and public trust in the judiciary.

The JCR considers that there is merit in a register of interests for members of the judiciary. I do not think it necessary to establish such a register. I continue to be of the view that there are already sufficient safeguards in place to ensure the impartiality of the judiciary.

These have been set out in previous correspondence and comprise the judicial oath, the Statement of Principles of Judicial Ethics and the rules made under the 2008 Act. I do not consider that the case has been made that these existing safeguards are not effective.

It is of note, that after being kicked from the post of Justice Secretary – Kenny MacAskill ended up on the same Public Petitions Committee which was considering the petition calling for a register of judicial interests.

And, during a hearing of the Petitions Committee on 1 December 2015 – MacAskill – by now devoid of Ministerial rank – suggested calling the new Lord President - who was yet to be publicly identified at the time due to the appointments process - but was known to be Lord Carloway (Colin Sutherland)

The post of Lord President – with a salary of £220K per year - became vacant after Lord Brian Gill unexpectedly walked out of the top judicial post in May 2015 – giving only 30 days notice he intended to quit.

The 1 December 2015 hearing was reported in more detail here : EVIDENCE, M’LORD: Scotland’s next top judge to be asked to give evidence in Scottish Parliament’s probe on secretive world of undeclared judicial wealth, interests & judges' links to big business

Video footage of Mr MacAskill at the Public Petitions Committee in that meeting can be found here:

Petition PE1458 Register of Interests for Judges Public Petitions Committee Holyrood 1 Dec 2015

Judiciary (Register of Interests) (PE1458) 1 December 2015

The Convener: Our next petition is PE1458, by Peter Cherbi, on the creation of a register of interests for members of Scotland’s judiciary. Members have a note on the committee’s previous consideration of the petition and the submissions from the petitioner.

Do members have any comments?

Kenny MacAskill: We have heard from the previous Lord President and I think that we should hear from the new Lord President, whoever he is likely to be—I do not think that there is a “she” on the shortlist. That appointment is likely to be made in the next week or so, so there is still time for him to appear before us.

The Convener: In that case, we will write to the new Lord President, as we said that we would.

Decision: The Committee agreed to write to the new Lord President once appointed.

PETITION – A REGISTER OF JUDGES’ INTERESTS

The Scottish Parliament’s Justice Committee are currently investigating calls for a probe of Judicial Recusals, as part of their work on considering Petition PE1458: Register of Interests for members of Scotland's judiciary.

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, 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.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee and Justice Committee work in  relation to creating a Register of Judges’ Interests - can be found here : A Register of Interests for Scotland's Judiciary.