JUDICIAL REGISTER: Scottish Government confirm Register of Judges’ Interests will be created - after Holyrood TEN YEAR probe of judicial interests & recusals survives lobbying by legal vested interests to close public interest transparency petition

Scottish Govt agree to create Judicial Register. A PETITION to create a register of judges’ interests for all members of Scotland’s judiciary - survived a stormy session of the Scottish Parliament’s Justice Committee – after a failed last-minute Tory led attempt to shut down the TEN YEAR judicial probe.

The attempt to close down Petition PE 1458 was led by the now former MSP Justice Committee Convener – Adam Tomkins of the Scottish Conservatives – who launched blistering criticism on questions around judges’ interests during several hard edged statements to fellow members of the Justice Committee.

However, since these events took place on 2 March at the Scottish Parliament’s Justice Committee – the Scottish Government has since indicated they will create the register of judges’ interests as asked for in the petition - Petition PE1458: Register of Interests for members of Scotland's judiciary.

Petition PE1458 was originally lodged at the Scottish Parliament in 2012. The Petition calls for the creation of a publicly available register of judicial interests – containing information on all 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.

Confirmation the judicial register will now move forward, was reported in the media: SNP Government moves forward with register of interest plan for judges

The Daily Record article reports: Now Keith Brown, who was appointed by Nicola Sturgeon to be the new Justice Secretary, has confirmed the Government is taking it forward.

He said: “It was a manifesto commitment of the SNP to create a register of interests for members of the judiciary to improve transparency and trust in the justice system. “Now that the new government is in place, we will start looking at ways this register can be introduced and take forward the work needed to achieve this manifesto commitment.”

The Record further reports support for the petition from MSPs and the Scottish Government: SNP MSP Michelle Thomson said: “I support the commitment from the Scottish Government to create a register of interests for the judiciary. Members of the judiciary, like any other public servant in receipt of public funds, must disclose interests that could influence their decisions or give the perception of doing so”.

A Scottish Government spokesperson said: “Introducing a register of interests for members of the judiciary will increase transparency and trust in the justice system. The Scottish Government will now begin work to engage with stakeholders to consider how best to bring forward this justice reform.”

An additional blog report will publish more detail around the latest events relating to the petition and the creation of a register of judges’ interests – which the Scottish Government confirmed will occur.

Back to the events of March 2021 – Adam Tomkins – the now former Justice Committee Convener after having retired as an MSP at the 2021 election - was joined in the well organised effort to shut down the judicial register debate by Annabelle Ewing – who is now the current Deputy Presiding Officer of the Scottish Parliament, and MSP Rona Mackay – formerly of the Petitions Committee.

However, Justice Committee member John Finnie who has since stood down as an MSP launched a scathing rebuttal of the Tory Convener’s concerted effort to shut down debate on Scottish judges interests and demanded the petition be kept open. Mr Finnie was joined in support by MSPs Rhoda Grant (Scottish Labour), Liam Kerr (Conservative) Liam McArthur (Liberal Democrat) & Shona Robinson (SNP).

In response to Tomkins & Ewing’s praise for judges, and their expressed agreement with the Lord President to shut the petition, John Finnie said in response: “I will follow on from the convener’s comments about the separation of powers. Of course, in any liberal democracy, it is absolutely right that we have an independent justiciary. I accept that. However, we are talking about one individual the Lord President.”

“I do not know that individual and I have no axe to grind one way or another, but I will paraphrase the previous exchanges with him. He said, “No, I don’t want it.” The committee decided to write to him again, and he said, “I’ve already told you that I don’t want it, and I’m telling you again that I don’t want it.” There were discussions about his coming to give evidence and even about whether it was appropriate to ask him to come to give evidence. He said, “Well, I could come and give evidence but, as I’ve told you and I’ll tell you for a third time, I don’t want it.” To be perfectly honest, that does not seem to me like a functioning liberal democracy.”

“What is there to fear from disclosing the information that is being asked for? Examples of other jurisdictions have been given where that is done without a problem. Should we be surprised that a Government of whatever persuasion wants to be in accord with the Lord President and does not want to dissent from the Lord President’s position? Perhaps not.”

I am not persuaded by either of those arguments, but there is a more compelling reason why we must keep the petition open. I am supportive of the intention of the petition. As always, the devil will be in the detail, but the detail that has been shared with us is that we are being urged to commission the work that we had already decided on. It is very clearly unfinished work for the committee. We undertook to do things in relation to the petition; we have not done those. For that reason, we must pass it on to our successor committee to pick up on that work, and it will be for it to decide how to proceed thereafter. The petition should be kept open.”

Justice Committee members Shona Robison, Liam McArthur & Rhoda Grant also agreed to keep the petition open. 

The Scottish Conservatives Liam Kerr also agreed, to keep the petition open.

A planned motion to close the petition was apparently scrapped at this point and discussions aimed at shutting down the petition - which took place outside the realms of the Justice Committee prior to the hearing - have since been made available to journalists.

Instead – The Tory Justice Committee convener Adam Tomkins managed a final spat at the TEN YEAR probe of judges interests and plans to create a register – displaying visible concern that Justice Committee members had kept the petition open

A very animated Adam Tomkins ended the terse, at times bitter hearing on the petition by stating “I will close by saying that just because it is appropriate for elected members in the legislature to have a register of interests, that does not mean that it is appropriate for members of the judiciary to have a similar register of interests. The function of the separation of powers is to treat different branches of government differently, according to their institutional function.I hope that that is a fair summary albeit with a gloss from me at the end of the committee’s decision.”

Petition PE1458: Register of Interests for members of Scotland's judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all 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.

Video coverage of the Justice Committee meeting of 2 March 2021 and discussions relating to the register of judicial interests petition can be viewed here:

Register of Judges Interests Petition PE 1458 Scottish Parliament Justice Committee 2 March 2021

Judiciary (Register of Interests) (PE1458) Tuesday 2 March 2021

Convener Adam Tomkins (Scottish Conservative, Glasgow): The second of the petitions before us is PE1458, which concerns a register of judicial interests. The petition, from Peter Cherbi, calls on the Scottish Parliament to urge the Scottish Government to create a register of pecuniary interests of judges bill or to amend the present legislation to require all members of the judiciary in Scotland to submit their interests and information on any hospitality received to a publicly available register of interests. I refer members to the relevant papers, which include submissions from supporters of the petition.

As with the previous petition, the committee has had PE1458 before it for a long time the petition was lodged in December 2012. The last time that the committee considered the petition, it agreed to seek further information on other potential conflicts of interest relating to key stakeholders in the Scottish judicial system and to hold a round-table session on the matter with constitutional and academic witnesses. I am afraid that the pressures of competing work have meant that we have not been able to organise a round-table event on the subject, so that remains undone.

I open the discussion to members. As with the previous petition, we need to decide whether to close the petition or to keep it open for session 6. If we take the latter course, we need to justify our decision.

Annabelle Ewing (Scottish National Party, Cowdenbeath): I am mindful of the fact that I should probably have waited for my colleagues to indicate that they wished to speak first, because that might have been more appropriate, given that I am a newish member of the committee. In any event, I have read the clerk’s note and have been peripherally aware of the petition over the course of several years.

I cite a few points. First, as far as I can see, the statement of principles of judicial ethics is a comprehensive set of requirements. The idea that there is nothing in place is a fallacy. Secondly, I note that additional safeguards have been put in place during the time that the petition has been open. I cite the register of recusals and the publication of judicial expenses and overseas travel. Thirdly, and most importantly, I was struck by the letter from the Lord President and the key point about the need for the independence of the judiciary, which is not comparable to any other profession. The independence of the judiciary of the country is a fundamental tenet of our laws and our society. I agree with the Lord President on those matters, so I do not support the continuation of the petition.

Convener Adam Tomkins (Scottish Conservative, Glasgow): Thank you, Annabelle. The Official Report will not show this, but I was nodding vigorously as you commented on the fundamental importance of the independence of the judiciary as a tenet of the separation of powers. That is the principle that should be front and centre when we consider questions such as this one.

For a register of judicial interests to be created, either the Lord President would need to set that up or Parliament would need to legislate to do so. As Annabelle Ewing has just said, the Lord President has said that he does not see the need for such a register. That is also the view of the current Scottish Government, which has said that it does not support a register.

Liam Kerr (North East Scotland) (Scottish Conservative): For complete transparency, I make the usual declaration that I am a member of the Law Society of Scotland.

I listened carefully to Annabelle Ewing and the convener, who spoke very persuasively. It is an interesting debate. I have not, as yet, heard a convincing argument against the proposal. I think that there is something in what Annabelle Ewing and the convener said, but I need to hear more. Some of the recent debates that the convener and I have been involved in give me pause for thought about the petition.

The convener prefaced his comments by saying that the committee was previously interested in obtaining more information on the issue, and that we talked about having a round-table session. I want to hear and learn more about the issue before I decide what I think about a register of interests. For that reason, I am inclined to think that we should keep the petition open with a view to me or whoever has the privilege of coming back and being on the committee looking at the issue again in the cold light of day of the new session of Parliament.

Convener Adam Tomkins (Scottish Conservative, Glasgow): Annabelle Ewing has asked me to remind members that, like Liam Kerr, she is a member of the Law Society of Scotland, although, again, like Liam Kerr, she has never been not yet, at least on the bench. Thank you, Annabelle.

Liam McArthur (Liberal Democrat, Orkney Islands): I have no such declaration to make. I agree whole-heartedly with what you said, convener, and with what Annabelle Ewing said in opening the debate. It is indisputable that steps have been taken to address at least some of the principles of the concerns that were raised in the petition.

The point where I am slightly anxious here, I refer back to Annabelle Ewing’s comments on the earlier petition about the value and benefits of consistency is that, having sisted the petition previously on the basis that the committee would hold a round-table session to solicit wider views from stakeholders, but then not having done so, it would be difficult to make an argument for closing the petition. Again, that argument seems to be for administrative neatness. We made a commitment as a committee. If, after the election, the incoming committee does not feel that it needs to be beholden to that commitment, that is a decision for it, but it would be passing strange for us to abandon, simply because of the prospect of an election, the conclusion that we reached when we considered the petition previously.

On that basis, as with the earlier petition, I am minded to suggest that we keep this one open until the next session.

Deputy Convener Rona Mackay (Scottish National Party, Strathkelvin and Bearsden): I was on the Public Petitions Committee when the petition started its journey before it came to the Justice Committee, and I am supportive of it I am on record as saying that. However, given that the Lord President and the cabinet secretary have made their views clear on it several times, at this stage, we should close it, with the knowledge that the petitioner can bring it back in the next session of Parliament if he wants to carry on with it.

I do not think that that would be inconsistent. The petition is different from the previous one, which we decided to keep open, because the circumstances are different. At this stage, my preference is to close the petition, and the petitioner can always bring it back. However, I am sympathetic to the subject.

John Finnie (Scottish Green Party, Highlands & Islands): I will follow on from the convener’s comments about the separation of powers. Of course, in any liberal democracy, it is absolutely right that we have an independent justiciary. I accept that. However, we are talking about one individual the Lord President.

I do not know that individual and I have no axe to grind one way or another, but I will paraphrase the previous exchanges with him. He said, “No, I don’t want it.” The committee decided to write to him again, and he said, “I’ve already told you that I don’t want it, and I’m telling you again that I don’t want it.” There were discussions about his coming to give evidence and even about whether it was appropriate to ask him to come to give evidence. He said, “Well, I could come and give evidence but, as I’ve told you and I’ll tell you for a third time, I don’t want it.” To be perfectly honest, that does not seem to me like a functioning liberal democracy.

What is there to fear from disclosing the information that is being asked for? Examples of other jurisdictions have been given where that is done without a problem. Should we be surprised that a Government of whatever persuasion wants to be in accord with the Lord President and does not want to dissent from the Lord President’s position? Perhaps not.

I am not persuaded by either of those arguments, but there is a more compelling reason why we must keep the petition open. I am supportive of the intention of the petition. As always, the devil will be in the detail, but the detail that has been shared with us is that we are being urged to commission the work that we had already decided on. It is very clearly unfinished work for the committee. We undertook to do things in relation to the petition; we have not done those. For that reason, we must pass it on to our successor committee to pick up on that work, and it will be for it to decide how to proceed thereafter. The petition should be kept open.

Shona Robison (Scottish National Party, Dundee City East): I do not have strong views on the petition. I have some sympathy with Annabelle Ewing’s comments about the additional safeguards, and I think that we all agree on the independence of the judiciary. However, I also have some sympathy with what John Finnie has said, in that we should be consistent if we feel that there is some unfinished business for our successor committee to take forward, even if that is just the holding of a round-table session and the gathering of further evidence, it might be in a better position to make a definitive call on whether there is more that should be done here.

I hope that we can reach a consensus. I would be content for the petition to be included in our legacy report as something for our successor committee to consider further.

Rhoda Grant (Scottish Labour, Highlands & Islands): I agree with what John Finnie said and proposed.

Convener Adam Tomkins) Scottish Conservative, Glasgow: I am grateful to colleagues for what has been a very helpful debate. My sense of the discussion is that members of the committee do not feel as strongly about this petition as they did about the previous one. Some modest and minor disagreement has been expressed about whether to keep the petition open or to close it. However, I think that the balance of opinion is in favour of keeping it open, if only because there is a sense of unfinished business. However unfinished the business is, though, I think that everybody who has expressed a view on the matter is clearly of the view that that business needs to be transacted subject to and in the light of the fundamentally important principles of the separation of powers and the independence of the judiciary.

I think that the body of opinion is that the petition should not be closed at the moment, but that our successor committee in session 6 should be invited to consider the matter, if only to hear views and perhaps to explore a little why the Lord President is opposed or why the judiciary, who are represented by the Lord President, are opposed to the creation of such a register.

I will close by saying that just because it is appropriate for elected members in the legislature to have a register of interests, that does not mean that it is appropriate for members of the judiciary to have a similar register of interests. The function of the separation of powers is to treat different branches of government differently, according to their institutional function.

I hope that that is a fair summary albeit with a gloss from me at the end of the committee’s decision.

A reference in the Justice Committee’s Annual report for 2020 to 2021 states the following: Petition PE1458 - is a petition by Peter Cherbi calling on the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill or amend present legislation to require all members of the Judiciary in Scotland to submit their interests and hospitality received to a publicly available Register of Interests.

The Report states the Petition, and another will be kept open for the next session of the Scottish Parliament: At its meeting of 2 March 2021, the Committee considered these two petitions for the final time this session and agreed to keep both petitions open for a new committee to consider in session 6.

SCOTTISH PARLIAMENT JUDICIAL INTERESTS PROBE:

The judicial register petition - 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.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 - ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

The lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland's judiciary.

The Scottish Parliament’s Justice Committee has consistently supported calls for a judicial interests register over multiple hearings – where MSPs have spoken out on Scottish judges involvement in the Gulf States, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women's rights

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in May 2019 – where MSPs backed the petition - can be found here: JUDICIAL REGISTER: Justice Committee investigate approach to judges’ interests in other countries – MSPs say ‘Recusals register not comprehensive enough’ ‘Openness & transparency do not contradict independence of the judiciary’

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 – where evidence in relation to Scottish judges swearing dual judicial oaths and working for Human Rights abusing Gulf States dictatorships - can be found here: JUDICIAL REGISTER - MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

UNCONVINCING TOP  SCOTS JUDGES WHO REFUSED TO BE TRANSPARENT:

Scotland’s most recent two top judges failed to convince MSPs that a register of interests is not required for Scotland’s judiciary

Former Lord President Brian Gill, and current Lord President Lord Carloway consistently argued the existence of judicial oaths and ethics – which are both written, and approved by  judges negate any requirement for further transparency in the judiciary.

However, both the Scottish Parliament’s Public Petitions Committee – who investigated the judicial interests petition for six years, and the Justice Committee – who have considered the petition since 2018, found the judiciary’s arguments against transparency to be “unconvincing”.

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests - Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency - Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

Earlier reports of how the Justice Committee handled Petition PE1458, and evidence which emerged in relation to the Judicial Office and Court Service instructing Justices of the Peace and judges to falsely not record recusals, can be found here: INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals - Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings - would NOT be recorded in official register of judicial recusals

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

JUDICIAL REGISTER: Top judge failed to provide convincing argument against register of judges’ interests, Justice Committee evidence calls into question Justice Secretary’s misleading explanation of Scottish judges serving in Scotland and Gulf States courts

Lord Carloway failed to provide convincing reason against judicial register. EVIDENCE heard by the Scottish Parliament’s Justice Committee during MSPs recent consideration of a cross party plan to create a register of judges’ interests – reveals Scotland’s top judge again failed to provide any convincing arguments against a proposal to require Scotland’s judges to declare all their interests.

Petition PE1458: Register of Interests for members of Scotland's judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all 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.

A Register of Judicial Recusals was created in April 2014 by now former Lord President – Lord Brian Gill – in an attempt to persuade to drop their investigation of a proposal to create a fully published register of judges interests.

However, after eight years of investigation by the Public Petitions Committee and now the Justice Committee – the proposal - which has cross party backing, media support, support from independent former Judicial regulators and has sparked wide public debate on the state of Scotland’s judiciary – has now earned the backing of Justice Committee MSPs who believe the proposal should go forward to create a full register of interests – putting judges on the same level of transparency as elected members of the Scottish Parliament.

During the hearing, John Finnie MSP said: “The debate seems to be polarised. The petition has been open for a considerable number of years, and an issue remains. The public would expect some measure of accountability.”

James Kelly MSP said: “Over the period for which the committee has been examining the issue, I have become convinced by the case for a register of interests for the judiciary.”

“I note the responses from the cabinet secretary and Lord Carloway; there is clearly a bit of a stand-off here. Members’ suggestions of taking additional evidence to take the issue forward are sensible. We should not park the issue; it is important and we should continue to press it.”

Upon consideration of written evidence and material provided by the Petitioner in response to: letter from Lord Carloway, letter from Justice Secretary Humza Yousaf and letter from Scottish Justices Association - members of the Justice Committee decided to seek evidence from constitutional and academic witnesses – and briefings on the extent of conflicts of interest relating to key stakeholders in the Scottish justice system. Video footage of the hearing can be viewed here: Register of Judges Interests Petition PE1458 Justice Committee 10 March 2020

Minutes of the meeting concluded with the following decision: Public petition PE1458: The Committee considered various pieces of correspondence received in relation to its ongoing consideration of the petition. The Committee agreed to keep the petition open and to seek further oral evidence in due course, in round-table formal, from constitutional and academic witnesses.

The Committee also agreed to seek further written briefings from the Scottish Parliament Information Centre (SPICe) in relation to other potential conflicts of interests relating to key stakeholders in the Scottish judicial system. The Committee will consider the scheduling of this work as part of its work programming up to spring 2021.

Response to Lord Carloway's letter of 29 January 2020 - The letter from Scotland’s top judge – Lord Carloway to the Justice Committee in which Lord Carloway refused for the second time to give evidence to MSPs on the petition, was reported in further detail here: JUDGE JUDGES: Scotland’s top judge refuses to face MSPs on judiciary’s EIGHT YEAR battle against register of judges’ interests – Lord Carloway says he will not attend Holyrood to ‘rehearse the same arguments which have not apparently found favour’

Responding to Lord Carloway's letter of 29 January 2020 – evidence submitted in written form by the petitioner to the Justice Committee stated:

Noting the terms of Lord Carloway's letter, the Lord President's earlier evidence to the Petitions Committee on 29 June 2017 is available in video format here Lord Carloway evidence on Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017 for members interest.

I would encourage the Justice Committee to engage with Alex Neil MSP, who attended that hearing and asked pertinent questions of the Lord President. I believe the Committee could gain further insight into the issue of judicial interests, and failures of judges to declare recusals, by hearing from Mr Neil.

Lord Carloway states in his letter that "Elected office and judicial office are not comparable"

I believe anyone watching the evidence session where Lord Carloway faced questions from Mr Neil, would disagree with the Lord President's statement.

Transparency is, a public expectation of public office. A necessary guardian of fair hearing, truth, and a form which holds everyone accountable. Transparency can many times, be the foundation of public trust in politics, public life, and even the courts - where - without transparency, where would justice be?

The judiciary are the most powerful branch of the executive and therefore must be held to be the most accountable and adhere to the same level of transparency which applies to all other branches of public service.

Importantly, transparency does not impede independence of the judiciary, or even any other branch of the Executive. Rather transparency enhances public trust, and adherence to public service.

Lord Carloway states the following: "I remain of the view that, from the constitutional perspective, the extent of any monitoring of judicial conduct, including judges' interests relative to the performance of their duties, should remain a matter for the Judiciary and not for Government or Parliament."

The policy adopted by the judiciary of 'judges judging judges' is what ended up blunting any meaningful powers to the office of the Judicial Complaints Reviewer to oversee judicial complaints in Scotland.

These issues involving a lack of oversight of judicial complaints powers have been widely reported in the media: My position is window-dressing, says legal watchdog with budget of £2000

Judicial Conduct, judicial interests and related issues are certainly a matter for primary legislation, and it is worth noting the office of the Judicial Complaints Reviewer was established by Section 30 of the Judiciary and Courts (Scotland) Act 2008

In terms of a failure to declare interests or to maintain a register of interests, I draw to the attention of members - the issue of Lord Hoffmann's failure to declare interests in Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (1999), commonly referenced as "Hoffmann/Pinochet"

Hoffmann/Pinochet tainted the Law Lords over the question of declarations of interest despite their requirement to declare in a register, and subsequently the UK Supreme Court was created in the Constitution Reform Act 2005 Part 3 Section 23

Importantly the previous requirements of Law Lords to declare interests when they sat as Law Lords in the House of Lords, was omitted from the 2005 Uk legislation and set the stage where to this day - the Justices of UKSC have stated they themselves judge they do not require to declare their interests.

The UKSC's position on judicial interests UKSC Judges Expenses and Interests

The statement from the UKSC justices which has been quoted by two Lord Presidents previously, reads as follows: "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."

Lord Hoffmann's failure to declare his interests and the impact of such on public confidence could be summarised by Lord Hutton in his ruling on Hoffmann/Pinochet:

Lord Hutton said: ‘there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.’

While no one has been willing to discuss exactly why UKSC judges lost the previous Law Lords requirement to declare and register interests - Lord Hoffmann's failure to declare his interests in the Pinochet case, set a standard for judges to declare interests - which even Professor Paterson in his testimony to the Public Petitions Committee agreed with.

The judiciary's position on declarations of interests and creating a register of judicial interests, is contrary to the wider public interest and expectation of transparency - especially in our courts.

While noting the Lord President's repeat of his earlier comments in relation to issues involving the Council of Europe, and the Judicial Council in Scotland, Lord Carloway has not provided any convincing argument against creating a register of judicial interests.

It is also very clear from Lord Carloway's letter, the judiciary continue to maintain resistance to the very notion of a register of judicial interests, and will not create one on their own.

As the Public Petitions Committee have already found the petition's proposal of a Register of Judicial Interests to be "workable", and there has been consistent support including media and public interest and for the petition since it was filed in 2012 - and given the Justice Committee are minded to advance this matter as no convincing argument against this proposal has been made, I urge members to take the petition forward and advance PE1458 to primary legislation, to ensure all members of Scotland's judiciary declare and register their interests, in the same way as all others in public life, including all 129 MSPs of the Scottish Parliament register and declare their interests.

Further evidence submitted to the Justice Committee in response to the Justice Secretary’s continuing opposition to the creation of a register of judges’ interests, noted serious discrepancies in the Justice Secretary’s claims regarding Scottish judges serving in middle east Gulf States – reported in an earlier article here: NO, MINISTER: Justice Secretary claims Holyrood transparency legislation for register of judges’ interests - would undermine top judge who refused to meet Justice Committee on EIGHT YEAR judicial register petition

The Justice Committee have previously heard and viewed detailed evidence identifying several Scottish judges who served in Scottish courts while also serving in the Gulf States. MSP John Finnie made several observations on this in an earlier Justice Committee hearing here: John Finnie MSP - Scots Judges serving in Gulf States - Justice Committee 28 May 2019

Responding to the Cabinet Secretary's letter of 7 February 2020 – evidence submitted in written form by the petitioner to the Justice Committee stated:

Noting the Cabinet Secretary's response, I wish to point out one of the two Scottish judges in articles submitted to the Justice Committee, was indeed serving in Scotland at the time of his service in the UAE, - dates on court opinions delivered by Lord McGhie in Scotland and previously provided to the Justice Committee show this to be the case.7

The newspaper investigation stated "Our investigation found that Lord McGhie has been registered to sit in the UAE for the past two years while he was also dispensing justice at the Court of Session in Edinburgh." - This was accurately reported in the media: Scottish judges slammed for being on payroll of oppressive regimes abroad

Regarding Lord Hope of Craighead, members will be aware Lord Hope serves in the UAE and has done for some time, while also remaining a cross bench peer in the House of Lords, and therefore being required to declare his interests: Lord Hope of Craighead Register of Interests

As well as having a continuing effect on public life in the UK and Scotland as a peer, Lord Hope's House of Lords register of interests list "Chief Justice of the Abu Dhabi Global Market Courts (commercial court system in Abu Dhabi)" - necessitating the swearing of a judicial oath in Abu Dhabi, "Council Member and Trustee, Commonwealth Magistrates’ and Judges’ Association" & "Door Tenant, Brick Court Chambers, London, as an arbitrator".

Members of the Justice Committee will be aware many retired Scottish judges are brought back into service in the Scottish Courts, or for the purposes of heading inquiries and other public service roles - such as Lord Bracadale , and others such as retired Lord President Brian Gill, who is also listed as working as a Judicial Commissioner (along Lord Bracadale) for the UK Surveillance Commissioner: Appointment of 13 Judicial Commissioners

Lord Gill is also involved in calling for a major inquiry into the land tenure system in Scotland - and therefore still maintains an influence on legislation and public life in Scotland.

Clearly, where retired judges are brought back into service, for court duty or inquiries, the Judiciary of Scotland should maintain their register of interests, given these judges are again, serving either the courts or the Scottish Government, and therefore contributing to public life in Scotland.

On the issue of recusals - in relation to financial interests (although the petition does seek to include all interests & links of members of the judiciary) for some reason there have never been any requirements for judges to disclose financial links which may result in a recusal published in the register of recusals.

And, I would draw to the attention of the Justice Committee - reports of a Sheriff heard a case involving a supermarket in which he had shareholdings, and then refused to recuse himself from the case - reported by the Herald newspaper: Pressure grows for register of judges' interests as sheriff hears Tesco case while holding shares in company

A further report on the same Sheriff revealed he also held shares in a company which was the subject of Scotland's biggest Proceeds of Crime order in connection with activities in Iraq, reported by the Scottish Sun: Judge has Shares in Bribe Firm

I have previously drawn members attention to the promotion of former top prosecutor Lord Advocate Frank Mulholland to the position of a Senator of the Court of Session. It is a matter of record Lord Mulholland supported Lord Carloway's review to abolish corroboration and previously appeared before the Justice Committee as Lord Advocate, as a witness expressing such support.

The fact Scotland's top prosecutor was given a position as a top judge in the Court of Session, is a matter of public interest, and as anyone may conclude, could create multiple conflicts of interest particularly given the short gap between Lord Mulholland's retirement as Lord Advocate and elevation to the judiciary.

These are issues which are clearly of relevance to a register of judges interests and should be included in such a register, given there are clear examples of cases in the past where prosecutors, promoted to members of the judiciary have heard cases and appeals by persons they previously prosecuted, but failed to declare any interest in court.

Over the course of six years of investigation and consideration by the Public Petitions Committee of evidence and hearings, every opportunity was given to myself and others, to respond to hearings, evidence and submissions from others in relation to Petition PE1458.

There is a stark contrast in these submissions, where only the judiciary and vested legal interests have taken an opposite view to transparency and declarations of interest - to the point Lord Gill refused twice to appear before the Petitions Committee, and now Lord Carloway has refused to appear before the Justice Committee on this petition.

Everyone else, and including two Judicial Complaints Reviewers who filed submissions with the Public Petitions Committee, and the Justice Committee, support the creation of a register of judicial interests.

Given the Cabinet Secretary's comments and the lack of any further arguments advanced by the Scottish Government and Lord President against the creation of a register of judicial interests, I would urge the Justice Committee to move forward and advance the petition to primary legislation.

An earlier article featured new material presented to the Justice Committee on the issue of how Justices of the Peace were deliberately excluded from the recusals register created by Lord Gill in April 2014 – reported in further detail here: INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals - Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings - would NOT be recorded in official register of judicial recusals

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.

JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women's rights

Need for Judges’ Register. MEMBERS of the Scottish Parliament’s powerful Justice Committee have committed to further work and action on a cross-party backed petition calling for the creation of a register of judges’ interests - Petition PE1458: Register of Interests for members of Scotland's judiciary

The petition 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.

Amid strong comments during last Tuesday’s Justice Committee meeting from MSPs supporting the need for action on judicial transparency from the seven year Scottish Parliament investigation – the Committee also decided to call for further evidence from Moi Ali - Scotland’s first Judicial Complaints Reviewer, and Scotland’s top judge - Lord President Lord Carloway.

Commenting on the petition – John Finnie MSP made extensive observations on evidence presented to Justice Committee exposing involvement of senior Scottish judges in the Gulf States, and submissions from Moi Ali, and Justice Secretary Humza Yousaf.

John Finnie said: “It is very helpful to have all this information here. “There are a number of suggestions. I, for one, cannot understand what the problem with having a register would be.”

“The more people tell me that there is no issue, the more I am convinced that there is a need for a register. The submission from Moi Ali is very helpful. She refers to a letter of 23 April 2014, which is now a bit old.”

“We have also been provided with extracts from news coverage.”

“I do not agree with the idea that anyone connected with the Scottish judiciary could have any role whatsoever in the United Arab Emirates.”

“I looked yesterday at the Human Rights Watch world report, which does a country by country breakdown. The United Arab Emirates is a country that is intolerant of criticism, which has played a leading role in unlawful acts in Yemen, and whose treatment of migrant workers’ rights and women’s rights is shocking. It is a country that permits domestic violence.”

I do not think that any reasonable examination of the role of a public official—and I get the point about the separation of the judiciary—would say that involvement in such a country is acceptable.”

“I believe that we need to do something and I am not content with the cabinet secretary’s response, which is just playing out the same line as before—that there is nothing to see here and we should move on.”

“I do not think that this issue will move on until we have the openness and transparency that people rightly expect of public office.”

Adding to the debate, Daniel Johnson MSP referred to the Nolan principles, from the Committee on Standards in Public Life

Daniel Johnson said: I would like to speak in support of what my colleague John Finnie has just said.

“The Nolan principles are 25 years old this year. They are principles that have guided public life very well, in particular integrity, whereby holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties”;

“openness, which I think is self-explanatory; and honesty, whereby”

“holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest”.

“That is pretty clear. Although the cabinet secretary may well not view that there is a problem, that is not to say that this is not a positive step towards ensuring that we have a judiciary that is open and transparent and whose integrity is beyond question.”

“I absolutely believe in the independence of the judiciary, but I think that in order to maintain that integrity and independence, this step has merit in terms of transparency.

“The committee should think about taking some further evidence, certainly from Moi Ali, which is the suggestion from the petitioner. This is something that we should progress and seek to move forward.”

Liam Kerr added: “I am pretty much in the same place on this. I can see the argument for why we would take this further and hear more.”

“I have looked at the response from the cabinet secretary and the reference to the previous cabinet secretary, whose view has been that there is nothing particularly to examine here.”

“Having considered the force of the argument in favour of exploring it further, I am not convinced that it is good enough to say, “There is nothing here. Don’t worry about it.”

For that reason, I think that we should look at this in more detail.

Liam McArthur said: “I echo what Daniel Johnson has said and much of what John Finnie has said.”

“In reference to the United Arab Emirates, although I might share many of his concerns, I think that the point is that a register would be illuminating”

Minutes from the meeting reveal the Justice Committee agreed to take evidence at a future meeting on issues raised by the petition – which will occur later this year in September.

Video from the Justice Committee meeting, the full official transcript and further reporting follows:

Register of Judicial Interests Petition PE1458 Justice Committee 28 May 2019

Judiciary (Register of Interests) (PE1458)

The Convener (Margaret Mitchell MSP): Our final item is consideration of petition PE1458. The petition is from Mr Peter Cherbi and asks the committee to consider the merits of establishing a register of interests for members of the judiciary. I refer members to paper 4. Since we considered the petition last time, we have received additional information from Mr Cherbi and also from Moi Ali. We have also received a letter from the Cabinet Secretary for Justice. I invite members to comment on the correspondence and say whether they wish to make any recommendations or suggest further action.

John Finnie MSP: It is very helpful to have all this information here. There are a number of suggestions. I, for one, cannot understand what the problem with having a register would be. The more people tell me that there is no issue, the more I am convinced that there is a need for a register. The submission from Moi Ali is very helpful. She refers to a letter of 23 April 2014, which is now a bit old.

We have also been provided with extracts from news coverage. I do not agree with the idea that anyone connected with the Scottish judiciary could have any role whatsoever in the United Arab Emirates.

I looked yesterday at the Human Rights Watch world report, which does a country by country breakdown. The United Arab Emirates is a country that is intolerant of criticism, which has played a leading role in unlawful acts in Yemen, and whose treatment of migrant workers’ rights and women’s rights is shocking. It is a country that permits domestic violence.

I do not think that any reasonable examination of the role of a public official—and I get the point about the separation of the judiciary—would say that involvement in such a country is acceptable.

I believe that we need to do something and I am not content with the cabinet secretary’s response, which is just playing out the same line as before—that there is nothing to see here and we should move on. I do not think that this issue will move on until we have the openness and transparency that people rightly expect of public office.

Daniel Johnson MSP: I would like to speak in support of what my colleague John Finnie has just said.

The Nolan principles are 25 years old this year. They are principles that have guided public life very well, in particular integrity, whereby

“holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties”;

openness, which I think is self-explanatory; and honesty, whereby

“holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest”.

That is pretty clear. Although the cabinet secretary may well not view that there is a problem, that is not to say that this is not a positive step towards ensuring that we have a judiciary that is open and transparent and whose integrity is beyond question.

I absolutely believe in the independence of the judiciary, but I think that in order to maintain that integrity and independence, this step has merit in terms of transparency. The committee should think about taking some further evidence, certainly from Moi Ali, which is the suggestion from the petitioner. This is something that we should progress and seek to move forward.

Liam McArthur MSP: I echo what Daniel Johnson has said and much of what John Finnie has said. In reference to the United Arab Emirates, although I might share many of his concerns, I think that the point is that a register would be illuminating and, if there is a justification in engaging in order to improve the way in which judicial procedures operate in a third country, at least we would all know what the purpose of that engagement is.

I very much concur with what has been said about the need for transparency and the underpinnings of the Nolan principles.

I see from the Scottish Courts and Tribunals Service the details of the accountability report. I am not sure that that is a massive leap away from what the petition is seeking, and therefore this may be a bit of a journey that it is on, but I certainly agree that it would be worth the committee continuing to pursue this, and to take further evidence from Moi Ali.

That would seem to be a logical next step, as John Finnie suggested. The earlier evidence was in written form. It was a number of weeks ago. I believe that it would probably benefit us all to hear what she has to say and cross-examine that a little further. I would be very keen to keep the petition open.

Liam Kerr MSP: I am pretty much in the same place on this. I can see the argument for why we would take this further and hear more. I have looked at the response from the cabinet secretary and the reference to the previous cabinet secretary, whose view has been that there is nothing particularly to examine here. Having considered the force of the argument in favour of exploring it further, I am not convinced that it is good enough to say, “There is nothing here. Don’t worry about it.” For that reason, I think that we should look at this in more detail.

Fulton MacGregor MSP: I echo what others have said. John Finnie in particular made a very compelling argument for doing something further on this. Some people have commented on the cabinet secretary’s response. It is not my take on it that he is saying that there is nothing to see here, but I think that we should take more evidence and information in order to work out where to go from here. I agree with what has been said.

The Convener (Margaret Mitchell MSP): If there are no other views, I will summarise. The committee is keen to hear from Moi Ali. Her letter was dated in 2014, but she has said that it is still relevant. It would be good to get an update. The Nolan principles are 25 years old, so perhaps it is time to take some evidence from Lord Carloway, if he is prepared to give a view, and certainly from the petitioner, and to give the cabinet secretary an opportunity to respond more fully than he did in his letter. If there are any other witnesses, we will be looking to do this in September. Are we agreed that that is how we will move forward?

Members indicated agreement.

CROSS-PARTY calls are being made for all of Scotland's judges to declare their interests:

The issue of judicial transaprency and calls for judges to declare their interests was reported in more detail on Scottish Television (STV) - full article by visiting the link here: Scots judges facing pressure to declare their interests

The STV report states: Cross-party politicians on Holyrood's justice committee believe that increased transparency is vital to maintain public trust in the judiciary.

The committee will call Moi Ali, the former Judicial Complaints Reviewer and current Independent Assessor of Complaints at the Crown Prosecution Service, to give evidence.

She told STV News: "This is the 21st century and people have quite high expectations of openness and transparency.

"I don't really understand why one small but very powerful section of society should be allowed not to have to do that. It really doesn't make sense.”

SNP MSP Alex Neil plans to introduce legislation if a register is not introduced.

An in-depth investigation on judicial conflicts of interest and the need for a register of judicial interests to increase public trust in the courts, is featured on STV (full article by visiting the link below)

 Judging for ourselves if conflict of interest in courts – By Russell Findlay

“Most people would struggle to name Scotland's top judge or many of the other 700-plus judicial office holders who preside in our civil and criminal courts.”

“His grand title is Lord President of the Court of Session and Lord Justice General (previously Colin Sutherland, lawyer) and one of his jobs is to take the swearing-in oath of First Ministers.”

“Yet he and these other largely unknown judges, sheriffs and justices of the peace hold great power - including being able to send people to prison - and their decisions directly or indirectly impact on all our lives.”

“However, there are growing concerns about how little we know about their outside interests and concerns that these could potentially influence decisions on the bench.”

SCOTTISH JUDGES SERVING IN THE GULF STATES:

An exclusive investigation by Investigative Journalist Russell Findlay revealed Scottish judges were serving in Abu Dhabi & UAE courts while serious Human Rights abuses were taking place against British citizens in the same countries.

The investigation also reveals how Scottish and UK judges are lured to the UAE, Abu Dhabi, and Qatar with big money salaries are available here: JUDGES FOR SALE: Special investigation into top lawmen being lured with big money jobs in Qatar and the UAE and here: Scottish judges slammed for being on payroll of oppressive regimes abroad

The report reveals TOP judges are accused of selling the reputation of Scottish justice by working for Middle East countries with toxic human rights records.

Two judges are on the payroll of the United Arab Emirates (UAE) where domestic violence against women is legal and where regime critics are tortured and jailed without trial.

The most senior is Lord Hope of Craighead — Scotland’s former top judge, a member of the House of Lords and ex-deputy president of the UK Supreme Court.

Our investigation found that Lord McGhie has been registered to sit in the UAE for the past two years while he was also dispensing justice at the Court of Session in Edinburgh.

In recent years, retired UK judges have been increasingly lured with big paycheques to new civil courts in Qatar and the UAE states of Abu Dhabi and Dubai.

Lord Hope is chief justice of Abu Dhabi Global Market Courts which also employs Lord McGhie and six other male judges from the UK and Commonwealth.

Another former Lord President, Lord Hamilton, sits in a court in Qatar which is accused of backing international terrorism and using migrant slave labour.

The Justice Committee’s meeting of Tuesday 28 May 2019, was also reported in The National newspaper, here:

Holyrood committee advance plans for register of judges' interests

By Martin Hannan Journalist 29 May 2019

SCOTLAND’S judges may soon have to register their interests after the Scottish Parliament’s Justice Committee yesterday defied Justice Minister Humza Yousaf and Scotland’s most senior judges on the issue of transparency.

Seven years after he raised a petition on the issue, journalist and legal issues campaigner Peter Cherbi admitted last night he was surprised that Holyrood’s Justice Committee were going to keep his petition “live” and take the matter up with Scotland’s most senior judge, the Lord President, Lord Carloway.

Justice Minister Yousaf had told MSPs a register of interests was not necessary. Lord Carloway and his predecessors have also opposed it.

Cherbi told The National: “I am happy to hear that the Justice Committee are taking this petition forward and the supporting comments from MSPs today who clearly understand the value of bringing a register of interests to Scotland’s courts.

“Thanks to media coverage, including in the National, the issue has remained in the public eye and interest for seven years, and public debate has led to people asking why judges should exempt themselves from transparency and accountability – which are the core principles of any justice system.

“The benchmark evidence from Scotland’s first judicial complaints reviewer, Moi Ali, contributed in great measure to how the Public Petitions Committee took the work forward, with MSPs backing the petition in a major debate at Parliament, and through the seven years of work by the Public Petitions Committee.

“Perhaps it is now time for our judiciary to reflect on why they have resisted calls for transparency for seven long years.

“Where the Lord President and Scottish Government have failed to act, I look forward to the Justice Committee moving forward on this issue, and creating legislation for a publicly available register of judges’ interests, with proper rules and full, independent scrutiny in a manner which is equivalent to the register of interests which many other public servants, including our elected representatives and Scottish ministers, must sign up to.”

NOLAN PRINCIPLES

The 7 principles of public life apply to anyone who works as a public office-holder. This includes people who are elected or appointed to public office, nationally and locally, and all people appointed to work in:

• the civil service
• local government
• the police
• the courts and probation services
• non-departmental public bodies
• health, education, social and care services

The principles also apply to all those in other sectors that deliver public services.

1. Selflessness: Holders of public office should act solely in terms of the public interest.

2. Integrity: Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.

3. Objectivity: Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.

4. Accountability: Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

5. Openness: Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.

6. Honesty: Holders of public office should be truthful.

7. Leadership: Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.

They were first set out by Lord Nolan in 1995 and they are included in the Ministerial code.

For further information on the 7 principles and the work of the Committee on Standards in Public Life, visit the Committee’s website and blogsite.

SEVEN YEARS JUDICIAL INTERESTS PROBE:

The judicial register petition - 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.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 - ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

The lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland's judiciary.

TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL TRANSPARENCY PROBE:

Both of Scotland’s recent top judges failed to convince MSPs that a register of interests is not required for judges – even after both Lord Presidents attempted to press home the existence of judicial oaths and ethics – which are both written, and approved by – judges.

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests - Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency - Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

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.

JUDICIAL REGISTER: Justice Committee investigate approach to judges’ interests in other countries – MSPs say ‘Recusals register not comprehensive enough’ ‘Openness & transparency do not contradict independence of the judiciary’

Justice Committee continues probe on Judges’ interests. A SEVEN YEAR probe by two committees of the Scottish Parliament - on cross party supported proposal to create a Register of Judges’ Interests – has called for views on how other jurisdictions tackle both judicial recusals and methods of declarations of judicial interests.

During discussions between members of Holyrood’s Justice Committee on Petition PE1458: Register of Interests for members of Scotland's judiciary, MSPs expressed the view that openness and transaprency – which the register of judges’ interests petition seeks to create – does  not contradict the independence of the judiciary.

Daniel Johnson MSP stated: “As was the case when we considered the petition previously, I think that there are reasons to examine it. In everything that I say, I bear in mind our duty to uphold the independence of the judiciary, but I do not believe that openness and transparency contradict that.”

Another Justice Committee MSP also expressed views on the completeness of the current Register of Recusals – a register of conflicts of interest which was created by ex Lord President Brian Gill during April 2014 - in response to the petition.

John Finnie MSP said: “I fully endorse Daniel Johnson’s view, and particularly the comment about independence. However, there is an obvious tension here. There is a public expectation—it is not unreasonable, in my view—that there should be no conflicts of interest. Our papers refer to the recusal register, but that does not seem comprehensive enough to me.”

While no reference was made to new evidence submitted to the Justice Committee, documenting work by serving Scottish judges in the Gulf States, a full submission by the petitioner to the Committee can be read in the previous report on Justice Committee work on the petition, here: MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

The lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

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.

The move to create a register of judicial interests enjoys cross party support, backing in the media, and crucial support from two of Scotland’s Judicial Complaints Reviewers – including Moi Ali

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) - appeared before the Public Petitions Committee in a hard hitting evidence session during September 2013,and gave full sypport to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Petition PE1458 Register of Interests for Judges Scottish Parliament Justice Committee 5 Feb 2019

Judiciary (Register of Interests) (PE1458)

The Convener (Margaret Mitchell Central Scotland Scottish Conservatives) :  Agenda item 4 is consideration of two petitions. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper. Paragraph 5 of paper 4 provides the options that are available to the committee when it considers petitions.

The first petition that the committee will consider is PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. The petition calls on the Scottish Parliament

“to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.”

This is the committee’s third consideration of the petition. I refer members to annex A of paper 4, which details the response that was received from the Scottish Courts and Tribunals Service. The committee is asked to consider what, if any, further action it wishes to undertake in relation to the petition. The options available include: keeping the petition open; keeping it open and taking additional action, such as writing to the cabinet secretary and/or others; or closing the petition. I seek members’ views.

Daniel Johnson (Edinburgh Southern) (Lab): As was the case when we considered the petition previously, I think that there are reasons to examine it. In everything that I say, I bear in mind our duty to uphold the independence of the judiciary, but I do not believe that openness and transparency contradict that. The Public Petitions Committee took evidence on the issue, but that was some time ago—I believe that it was in 2013—so I wonder whether the committee might want to pull together information regarding how other countries approach the issue. Given that we have a new Cabinet Secretary for Justice, we could perhaps also request his views on the matter.

John Finnie (Highlands and Islands) (Green): I fully endorse Daniel Johnson’s view, and particularly the comment about independence. However, there is an obvious tension here. There is a public expectation—it is not unreasonable, in my view—that there should be no conflicts of interest. Our papers refer to the recusal register, but that does not seem comprehensive enough to me. I agree with the proposal that we should find out about the approach in other countries, particularly New Zealand, as that would be helpful.

Rona Mackay (Strathkelvin and Bearsden) (SNP): I totally agree with Daniel Johnson and John Finnie. More information would be helpful. It is an important issue, and transparency has to be key.

Daniel Johnson: For information, I point out that the bill on the issue that was before the New Zealand Parliament was either withdrawn or defeated, but I understand that a register exists in other jurisdictions. I think that Norway has been mentioned.

The Convener (Margaret Mitchell): Clearly, there are huge issues at stake, and a fine balance has to be struck. I would like to know a little more about how the recusal code or policy works. When a conflict of interest is declared, how much detail is recorded and is it in the public domain? It would be good to look at that.

I get the impression from members that they would like to at least explore legislation in other countries. Norway has been mentioned. New Zealand did not proceed with the proposals, but it would perhaps be good to look at what was said there. As Daniel Johnson rightly points out, we have a new cabinet secretary, so it would be good to seek his views.

Are members content to progress by doing those three things?

Members indicated agreement.

The Justice Committee hearing on Petition PE1458 was also reported in the National newspaper here:

Seventh year of register or judges interests petition

By Martin Hannan Journalist  07 Feb 2019

The committee will also seek the views of Justice Secretary Humza Yousaf

FOR nearly one third of the entire lifetime of the Scottish Parliament, MSPs have been discussing the petition put forward by law journalist and campaigner Peter Cherbi calling for a register of judges’ interests.

Now in its seventh year of consideration, the petition calls on the Scottish Parliament “to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill ... or amend present legislation to require all members of the Judiciary in Scotland to submit their interests and hospitality received to a publicly available Register of Interests.”

In the latest development, Holyrood’s Justice Committee has decided to call for more evidence after the Petitions Committee referred the case to them. John Finnie, Highland MSP for the Greens, said: “There is a public expectation – it is not unreasonable, in my view – that there should be no conflicts of interest.”

The committee will also seek the views of Justice Secretary Humza Yousaf.

As a result of the petition, the Scottish judiciary now keep a register of recusals, when a judge or sheriff steps aside from a case.

Cherbi commented: “It does somehow feel like the six years of work from the Public Petitions Committee (PPC) should be put to better use, and work should now begin on creating the register rather than repeating the evidence exercise.

“Seven years is a long time for a petition on transparency, especially one calling for a register of judicial interests to the equivalent or higher standard of the same register which MSPs are required to adhere to.

“I feel we must now move on and take the good work of MSPs on the PPC to bring this register into existence,” he added.

Previously, on the Register of Judicial Interests Petition -

A video report of the Public Petitions Committee backing for the petition can be viewed online here: Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland's judiciary.

MSP at Holyrood have previously heard over sixty two submissions of evidence, during twenty one Committee hearings, and a private meeting between two MSPs and a top judge, and two private meetings since early December 2017 to decide a way forward on their six year investigation.

Cross party support for the Petition at the Scottish Parliament saw fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2018.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 - ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

Scotland’s second Judicial Complaints Reviewer Gillian Thompson OBE also supported  the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests - Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency - Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

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.