Papers obtained via Freedom of Information legislation and published in 2016 reveal that Scottish judge Lord Reed – who has sat on the Supreme Court since 2012 – also sat on the selection panel which recommended the appointment of Lord Carloway (Colin Sutherland) as Lord President in 2015.
The potential conflict of Lord Reed - identified during discussions with legal sources – has a bearing (but no overall effect) on the ruling by eleven Supreme Court justices in relation to the findings of three Scottish appeal court judges – headed by Lord Carloway – who declared Prime Minister Boris Johnson’s decision to suspend parliament in the run-up to the October Brexit deadline as unlawful.
In that ruling, Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.
However, the failure of Lord Reed to declare he sat on the appointments panel which recommended Lord Carloway for the top judicial job in Scotland – is one of two potential conflicts of interest for the Supreme Court judge which may have required to have – at the very uleast - been aired and debated for recusal - prior to the UKSC hearing on the suspension of the Westminster Parliament.
How judges select Scotland’s judges - in secret Scottish Government documents previously obtained by the media revealed the selection panel for the office of Lord President - of which Lord Reed was a member, along with Sir Muir Russell, Judge Lady Dorrian, and Deirdre Fulton – considered five candidates for the position of Scotland’s top judge.
Written exchanges between civil servants and the selection panel which are included in the released papers - reveal a short listing meeting was held on 1 September 2015.
The panel considered that two applicants Lord Carloway [Redacted] merited an interview on the basis of the quality of their applications.
Two emails from Lord Reed, dated 14th ^ 15 October 2015 – released by the Scottish Government in the FOI documents - give a minimal, and heavily redacted description of Lord Reed’s role in the panel’s work, which ultimately recommended Lord Carloway for the position of Scotland’s top judge.
In one email, Lord Reed states: “This strikes me as an excellent report. I have made a few minor suggestions as shown on the attached version. Most of the suggestions are trivial, [redacted]”
In a second email Lord Reed writes “I am content with the amended report. I agree, in particular, with the points which were made by Leeona. The amended version beems to me to present an accurate account, and a fair and balanced assessment [redacted]”
A further potential interest not declared, brought ot the attention of journalists by a legal source, identifies Lord Reed’s work together with Lord Carloway – on a ‘compatibility issues review’ to consider if the High Court of Justiciary in Scotland would still have to give permission for appeals in criminal cases to go forward to the UK Supreme Court.
The review group was itself established by Lord Carloway, with others appointmed to the group being Lord Reed (Deputy President of the UKSC), and others - Lady Dorrian (Lord Justice Clerk); David Harvie (Crown Agent); Roddy Dunlop QC (Treasurer of the Faculty of Advocates); and John Scott QC (President of the Society of Solicitor Advocates).
The review concluded - "Appeals to the Supreme Court of the United Kingdom (UKSC) should not require certification by the High Court of Justiciary that the issue raises a point of law of general public importance, a review chaired by the Lord Justice General has concluded."
Although – it should be pointed out – coincidentally, the review on appeals to the UKSC – limited to appeals in criminal cases - came too late to help in several serious cases of judicial conflicts of interest in Scotland – particularly on a well known case where Court of Session judge & Privy Councillor - Lord Malcolm (Colin Campell QC) heard a case up to eight times - while failing to declare his own son represented the defenders in multi million pound damages action.
A report on the Lord Malcolm conflict of interest case can be found here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times - where his son acted as solicitor for the defenders.
The two potential conflicts of interest, not declared by Lord Reed in relation to what is a law changing UKSC ruling of significant impact – again highlight the need for a publicly available Register of judges’ interests - to ensure members of the judiciary do not forget to disclose interests which may have a bearing on cases before them.
The issue also brings into question again, the self imposed secrecy on judicial interests by the judges of the UK Supreme Court and wider UK Judiciary – who have resisted calls to become more transparent and declare their interests in the same way all public servants and elected politicians are required to declare in publicly available registers of interest.
The current stance of UK Supreme Court judges on transparency in relation to declarations of interest, is a point blank refusal by the judiciary to comply with the public expectation of transparency.
The UK Supreme Court’s website states the following in relation to judicial expenses and interests:
Justices' interests and expenses
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.
In relation to the UK Supreme Court’s stance on declarations of interests, and declarations of conflicts of interest, Diary of Injustice reported on the issue in detail during 2017, here: SUPREME SECRETS: UK Supreme Court refuses to publish recusal data - Court rejects release of info on UKSC justices' conflicts of interest in response to Freedom of Information recusals probe on top UK court
During the probe of UKSC recusals and failure to declare interests, a common thread of dishonesty was noted in court staff’s handling of a Freedom of Information request from Scotland – which was only answered after coverage of the issue in The National newspaper, which prompted the Information Commissioner’s Office to order the court to respond to the request.
Lord Reed’s limited biography on the UK Supreme Court website (reprinted below) does not feature either of the issues identified linking the judge to Lord Carloway’s appointment as Lord President nor any mention of review & other work undertaken with Lord Carloway – including the UK Supreme Court sitting in Edinburgh, which included Lord Carloway as a sitting judge on the UKSC panel.
LORD REED BIOGRAPHY:
Robert John Reed, Lord Reed became Deputy President of The Supreme Court on 7 June 2018. He was appointed as a Justice of The Supreme Court in February 2012.
He studied law at Edinburgh University and undertook doctoral research in law at the University of Oxford. He qualified as an advocate in Scotland and as a barrister in England. He practised at the Scottish Bar in a wide range of civil cases, and also prosecuted serious crime.
He served as a senior judge in Scotland for 13 years. From 2008 to 2012 a member of the Inner House of the Court of Session, and from 1998 to 2008 a member of the Outer House of the Court of Session, where he was the Principal Commercial Judge.
As well as sitting on the Supreme Court and the Judicial Committee of the Privy Council, he is also a member of the panel of ad hoc judges of the European Court of Human Rights, and is a Non-Permanent Judge of the Court of Final Appeal in Hong Kong. He is also the Visitor of Balliol College, Oxford.
Lord Reed is one of the two Scottish Justices of The Supreme Court.
To update readers – on 24 July 2019, the last working day of Prime Minister Theresa May, HM the Queen appointed Lord Reed to serve as the President of the Supreme Court of the United Kingdom and declared her intention to raise him to the peerage.
Lord Reed will take over as President of the United Kingdom Supreme Court from Baroness Hale of Richmond on 11 January 2020.
IMPORTANT NOTE: Readers should note this article does not take sides in the brexit debate. Rather this article is a reporting of a failure to declare or discuss relevant interests and a potential failure to recuse - by a senior judge who has been appointed as the new President of the UK Supreme Court.
great journalism
ReplyDeleteThe UK is now such a polarised place on Brexit journalists feel they have to issue an "Important note" of impartiality in reports?
ReplyDeleteFull marks to you Peter for daring to publish this information.
ReplyDeleteDid you know the Scottish National Party and ex lawyers turned MPs are terrified of politically appointed judges at the Supreme Court
But as everyone now knows the SNP are very big on SNP friendly politically appointed judges in Scotland
https://www.thetimes.co.uk/article/supreme-court-applicants-escape-us-style-questions-rb09cj8qq
Supreme Court applicants escape US-style questions
Jonathan Ames
Ministers are not planning to make applicants for the Supreme Court bench face a US-style appointments system and be questioned by MPs, the government's senior law officer told MPs yesterday.
Geoffrey Cox, QC, the attorney general, was urged in the Commons to rule out a move towards US-style confirmation hearings, which he had hinted at last week in the wake of the unanimous Supreme Court ruling that the prime minister's suspension of parliament had been unlawful.
Alex Chalk, a Conservative MP and former barrister, said that there had been some "unwise voices" advocating a move towards a US-style process of appointing senior judges.
Mr Cox responded: "These kinds of hearings, certainly US-style hearings, would be a regrettable step for us in our constitutional arrangements. Government has no current plans to do so.
"It is fair to say the implications of the judgment and the continuing development of our constitutional arrangements will no doubt receive properly the intense scrutiny of this House."
Martyn Day, a Scottish National Party MP, pressed Mr Cox to "categorically rule out" any changes that could result in a political appointment system.
The attorney-general replied: "The government has no such plans to introduce any such appointment system." He said that a US-style system would be a "wholly retrograde step".
Last week 11 members of the Supreme Court ruled that Boris Johnson had abused his powers when he advised the Queen to prorogue parliament for five weeks.
Speaking in the House after that ruling, Mr Cox told MPs that Brexit could prompt a constitutional overhaul that would include "parliamentary scrutiny" of senior judicial appointments.
At present appointments are made by a selection commission that includes a member from each of the Judicial Appointments Commission for England and Wales, the Judicial Appointments Board in Scotland and the Judicial Appointments Commission in Northern Ireland.
Scottish Lord Vested Interests delay making UK Government policy on everyone's behalf
ReplyDeletehttps://www.bbc.co.uk/news/uk-scotland-scotland-politics-49975066
Brexit: Scottish court delays decision on extension letter
A Scottish court has delayed a decision on whether to sign a letter requesting a Brexit extension if Boris Johnson refuses to do so.
Campaigners asked the judges to agree to enforce legislation passed by MPs aimed at preventing a no-deal exit.
The Benn Act requires Boris Johnson to ask EU leaders for a delay if a deal has not been agreed by 19 October.
Judges at the Court of Session said they could not rule on the matter until the political debate has "played out".
The court will sit again on 21 October, with the judges saying the circumstances should be "significantly clearer" by then.
A previous court opinion had said there was "no doubt" that the prime minister had agreed to abide by the law, but the campaigners claimed he could still look to "frustrate" the legislation.
The case has been brought by three petitioners - businessman Dale Vince, QC Jolyon Maugham and SNP MP Joanna Cherry.
You may want to check out Edinburgh and other Scots law firms who are cosying up to corrupt Chinese politicians using Vanuatu passports and buying up property much of it using false names and trusts set up by same lawyers will give you more info later
ReplyDelete@ 7 October 2019 at 11:32
ReplyDeleteOn the subject of judicial interests linked to the Brexit cases and at this time, yes.
Also most comments on this article cannot be published due to a variety of reasons.
@ 8 October 2019 at 21:37
Thanks, amazing how the judiciary have lobbyists within our elected parliaments who will protect judges giving judicial jobs to the usual suspects, via sham judicial appointments process resembling more of a Cayman Islands front company than a mythical 'independent' panel.
@ 9 October 2019 at 18:09
Noted, could fit in with something already looking at. Any further info appreciated.
wow heavy stuff been checking out your blog and twitter you speak the truth!
ReplyDeleteWe have all seen and heard the same tired old excuses from Scottish vested interests - all comprehensively dismissed - in the articles and videos on your excellent blog.
ReplyDeleteWhat on earth is stopping the justice committee (don't laugh please)in the Scottish Parliament moving your petition into law. Surely by now they realize that the status quo will never again be an option.
Keep up the great reporting.
I get the impression that politicians of all parties are hiding behind the blizzard of the Brexit fiasco as a means of failing to address let alone answer awkward questions on other topics, not least your splendid petition which should have been made law years ago.
ReplyDeleteI shall continue to watch for progress as I am sure will many others. and I take my hat off to you, by far the bravest, accurate and most revealing journalist working on topics relating to the Scottish legal community.
If the Scottish sheriff's and judges have so many outside interests to make it impracticable to declare them all, then logic dictates that their outside interests have materially compromised their ability to be a lawful arbiter.
ReplyDeleteThe whole point of a judge is that to be an independent arbiter, they should have zero outside interests after all, this is why they are compensated by being paid an exorbitant salary.
It seems obvious therefore that those sheriff's and judges who have outside interests, competing with their ability to be seen to be impartial, have chosen not to be fit to do their job and have brought their position into disrepute.
This having their cake and eating it attitude is poisonous and anathema to justice.
It is about time that we sack all of the sheriff's and judges who have outside competing interests as they have brought themselves and their ability to do their primary function into disrepute.