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: Holyrood Justice Committee to continue work on register of judges’ interests – MSPs to seek evidence from constitutional experts & report on conflicts of interest of key stakeholders in the justice system

MSPs to continue work on judicial register. THE Scottish Parliament’s Justice Committee will continue work on a cross-party backed petition calling for the creation of a register of interests for all Scottish judges: Petition PE1458: Register of Interests for members of Scotland's judiciary.

On Tuesday, members of the Justice Committee voiced their support for the plan to create a judges’ register of interests – despite intense opposition from Scotland’s top judge Lord Carloway – who refused to face questions from MSPs on judges’ interests .

Justice Committee members also 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.

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.”

“I note the comments about intrusion into the independence of the judiciary, and I wonder if there is any opportunity to investigate that further as a way forward. I am conscious that the petition has been around for a long time.”

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.”

Rona Mackay MSP said: “It is a very important issue, and it will not just disappear. As a committee, we should investigate it further and take some wider evidence to inform our views. I would be in favour of doing that at this stage. Albeit that we have—as John Finnie says—reached an impasse, it is incumbent on us to take a wider look.”

The move by the Justice Committee comes amid strong and continued opposition to the judicial transparency proposal from Scotland’s top judge – Lord Carloway, and Justice Secretary Humza Yousaf who both oppose any moves to require judges to disclose their interests in the same way others in branches of government, boards and all 129 MSPs disclose and register their interests.

Earlier this week, MSPs were provided with evidence from a senior Justice of the Peace that the official Register of Judicial Recusals – created by former Lord President Lord Brian Gill – was an incomplete record of conflicts of interest in Scotland’s courts.

Writing in a letter to the Justice Committee Convener, Justice of the Peace Dennis Barr said: “We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.”

The startling admission from Mr Barr - that judges were told by Scottish Courts and Tribunals Service (SCTS) staff - that any cases where Justices of the Peace stood down from a court case due to conflict of interest - would NOT be recorded - completely undermines assurances to MSPs from retired top judge Brian Gill, and current Lord President Lord Carloway – that the recusals register was an accurate register of Scottish judges standing aside from cases due to conflicts of interest.

Mr Barr’s evidence to the Justice Committee was 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

Continued opposition from the Scottish Government to the judicial transparency proposal – in the form of a letter from Justice Secretary Humza Yousaf to the Justice Committee, is reported in further detail 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 Secretary claimed that adding the requirement of judges to declare their interests could undermine Scotland’s top judge and intrude on the judiciary’s independence – similar arguments which have been constantly put forward by the Scottish Government & judiciary to the Public Petitions Committee – who investigated the petition for over six years and backed the plan to create the judicial register.

Further reporting on the register of judges’ interests petition and conflicts of interest of Scottish judges can be found on STV News here: Judging for ourselves if conflict of interest in courts and here: Scots judges facing pressure to declare their interests

The cross party backed judicial register petition filed 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.

Minutes of the meeting of Tuesday’s Justice Committee reveal 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.

Video footage of Tuesday’s hearing can be viewed here:

Register of Judges Interests Petition PE1458 Justice Committee 10 March 2020

Judiciary (Register of Interests) (PE1458)

Margaret Mitchell (Central Scotland) (Conservative) Convener:  Agenda item 7 is consideration of petition PE1458, which is a proposal to establish a register of judicial interests. I refer members to paper 4, which is a note by the clerk. Do members have any questions or comments?

John Finnie (Highlands and Islands) (Green): We have had some very interesting contributions from the Cabinet Secretary for Justice and from various representatives of the judiciary, as well as comments on each of those from the petitioner.

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. I note the comments about intrusion into the independence of the judiciary, and I wonder if there is any opportunity to investigate that further as a way forward. I am conscious that the petition has been around for a long time.

I am supportive of the principle, and I note everything that has been said. However, we seem to have hit an impasse. I am keen to hear the views of different people—constitutional lawyers, for example.

Liam McArthur (Orkney Islands) (LD): I agree with John Finnie. Intuitively, I am supportive of the idea of a register. However, I do not underestimate some of the concerns that have been raised by the cabinet secretary and representatives of the judiciary—particularly on the independence of the judiciary.

The debate is rather polarised, and it is difficult to see where compromise might be possible. However, I wonder whether we might proactively elicit views from academics in the area, with a view to testing some of the arguments that they made to us in their helpful evidence.

Rona Mackay (Strathkelvin and Bearsden) (SNP): It is a very important issue, and it will not just disappear. As a committee, we should investigate it further and take some wider evidence to inform our views. I would be in favour of doing that at this stage. Albeit that we have—as John Finnie says—reached an impasse, it is incumbent on us to take a wider look.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP): It is clearly an important issue, which merits our having a conversation or a discussion about it in the committee.

On principle, as the petition has been in the system for eight years, we should take evidence with a view to bringing the matter to a conclusion. It is not fair to have petitions in the system for that length of time without bringing them to some kind of conclusion. However, I would be happy to hear evidence on it.

James Kelly (Glasgow) (Lab): 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.

The Convener: I should note that there is a petition that we have been dealing with for in excess of eight years—the Megrahi case petition. However, as members have said, it is not an ideal situation. Given the impasse and the diametrically opposed views, does the committee wish to seek further information on the record in a formal meeting with constitutional lawyers and others, in an effort to move forward and with a view to looking at the pros and cons of the petition? We could then take a formal decision on it. We could also ask the Scottish Parliament information centre and the clerks for a note on the wider issues, perhaps even taking into account any conflict-of-interest issues that might have a bearing on how court decisions are taken.

Liam McArthur: I agree with that. Such an evidence session might be better using a round-table format, rather than having a more traditional evidence session. Due to the fact that the cabinet secretary and, previously, the petitioner referred to the situation in New Zealand, which has now taken a different course, it would certainly be useful in the information that is to be provided by SPICe to have an understanding of the thought process that the New Zealand Parliament went through to arrive at the decision that it reached in relation to the same issue.

The Convener: Are we all agreed that that is the way forward?

Members indicated agreement.

The National reported on developments at the Justice Committee here:

 Scottish judges and government on collision course over interests register

By Martin Hannan The National 11 March 2020

THE Justice Committee of the Scottish Parliament is on a collision course with the Scottish Government and leading Scottish judges after the Committee voted to continue its inquiries into the possibility of legislation to set up a register of the financial and other interests of judges.

Lord Carloway, Scotland’s senior judge, and justice secretary Humza Yousaf both told the committee by letter yesterday that they were opposed to such a register, indicating that the petition for such a register raised in 2012 by journalist and law blogger Peter Cherbi should now be dropped.

The Committee decided otherwise, however, and 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”.

In a surprise move directly against the wishes of Yousaf and Carloway, the Committee agreed to consider the scheduling of this work as part of its work programming up to spring 2021.

Yousaf had told the Committee: “I would caution however that if such a register were to be established by way of legislation, rather than through the powers of the Lord President, this may be perceived as undermining the principle of judicial independence and the separation of powers between the judiciary and other branches of government.”

Yet Carloway, the Lord President and Lord Justice General, has long made known his opposition to such a register, and he told the Committee in his letter that he would not be attending to give his views.

Speaking at yesterday’s meeting, John Finnie MSP said the debate on the issue had become “polarised”.

He said: “There is an issue here that remains to be dealt with and I think the public would anticipate that there is some measure of accountability.”

Peter Cherbi told The National: “Noting the Justice Committee meeting today I am grateful to those MSPs who declared their support for the register of judicial interests – and all the MSPs who have previously worked on this petition to support it and advance the issue of judicial transparency

“Clearly the debate has become very polarised as John Finnie said during the hearing. This polarisation has come about because the judiciary are entrenched in their opposition to the same level of transparency which applies to all other branches of the executive.

“It is no accident this petition has lasted eight long years, where at every turn the judiciary have sought to undermine the petition at every hearing, invoke anyone, from government ministers to vested legal interests in an effort to shut down the petition and any debate on judicial transparency.

Sadly, the effort expended by judges against this petition, is an indication judges have something to hide and fear disclosure.”

UNCONVINCING TOP  SCOTS JUDGES WHO REFUSED TO BE TRANSPARENT:

Scotland’s 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

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.

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

Justice Sec. Humza Yousaf opposes judicial transparency. SCOTLAND’S Justice Secretary has attempted to block further action in an EIGHT YEAR Holyrood judicial transparency probe – by claiming any primary legislation created by MSPs to require judges to declare their interests – could undermine Scotland’s top judge – who is also opposed to Petition PE1458: Register of Interests for members of Scotland's judiciary.

Writing in a letter to Margaret Mitchell MSP - Convener of the Scottish Parliament’s Justice Committee – Justice Secretary Humza Housaf claimed: “I would caution however that if such a register were to be established by way of legislation, rather than through the powers of the Lord President, this may be perceived as undermining the principle of judicial independence and the separation of powers between the judiciary and other branches of government.”

The cross party backed judicial register petition filed 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.

Mr Yousaf also told the Justice Committee that recent details of Scottish judges working in the Gulf States while serving in Scotland were not relevant because since the judge was allegedly acting as a judge on a temporary basis – the rules did not apply to him.

However court opinions previously provided to MSPs confirm Scottish judges heard cases in the Court of Session while also working in the United Arab Emirates.

The Justice Committee previously considered material in relation to Scottish judges serving in the Gulf States & United Arab Emirates – reported in further detail 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

John Finnie MSP - Scots Judges serving in Gulf States - Justice Committee 28 May 2019

During a hearing on 28 May 2019, Justice Committee member John Finnie MSP said “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.”

Earlier in April 2019, Mr Yousaf wrote to the Justice Committee, claiming ““no further evidence has been provided to the Justice Committee that strengthens the arguments already put forward in favour of the introduction of the register.”

However, the 2019 letter from the Justice Secretary was found to have copied much of it’s content from a letter dated April 2014 – from the then Justice Secretary Kenny MacAskill to the Public Petitions Committee – reported in more detail here: COPY MINISTER: ‘Copied’ content from ex Minister sent by Justice Secretary Humza Yousaf to Holyrood MSPs - Public must rely on judges judging judges for transparency, Scottish Government will not create register of judges’ interests

The latest attempt by the Scottish Government to scupper the eight year probe of a cross party supported petition to create a register of judges’ interests comes after a previous Minister for Legal Affairs - Paul Wheelhouse told the Public Petitions Committee in 2014 the judiciary were concerned gangsters could see their interests.

It later transpired Mr Wheelhouse was accused of misleading MSPs after files obtained via Freedom of Information revealed there was no basis for such claims, and Ministerial advisers had attempted to hunt down any leads to back up Mr Wheelhouse - without success.

And, despite Mr Wheelhouse misleading claims of gangsters & judges – a probe by journalists uncovered instances of members of Scotland’s judiciary representing some of the country’s top gangsters in the same courts in which they serve as judges.

Former Legal Affairs Minister Paul Wheelhouse evidence to the Public Petitions Committee can be found here: TOO MANY SECRETS: Legal Affairs Minister ‘anti-transparency’ evidence to MSPs a ‘poor substitute for top judge’ as Scottish Parliament Petitions Committee consider next move on proposal to create a register of interests for judges

Mr Wheelhouse’ evidence to MSPs came during a concerted attempt by Scotland’s then top judge – Brian Gill – to block MSPs from continuing to investigate plans to create a register of judges’ interests – which – later in October 2014 – saw a full debate at the Scottish Parliament, resulting in cross party support for Petition PE1458.

In 2015, First Minister Nicola Sturgeon also intervened in the petition, demanding the petition be closed due to the judiciary’s concerns of media and public scrutiny of judges interests – reported in further detail here: INTERESTS INTERVENE: First Minister joins top judge in bid to block register of judicial interests as MSPs consider recalling Legal Affairs Minister over dodgy evidence & private meeting with Lord Gill

Despite a barrage of opposition from Scotland’s judiciary and vested legal interests, the Public Petitions Committee continued work on Petition Pe1458 for a number of years, concluding a register of judges’ interests could, and should be created.

The decision by the Public Petitions Committee to endorse the petition was reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

MSPs on the Public Petitions Committee also looked at a model used by Norway for declarations of judges’ interests, supporting the introduction of a similar register in Scotland.

In Norway, judges must complete a register of interests listing honorary posts, investments, memberships of political parties, companies, religious communities and charities among others.

The Norwegian model of judicial interest disclosure was hailed by the Public Petitions Committee as model for Scotland’s judges to follow.

More on Norway’s register of judges’ interests can be found here: NORWAY, M’LORD: Judicial interests register of Norway cited as example to follow for Holyrood MSPs six year investigation to create a register of judges’ interests in Scotland

And in November 2019, the Convener of the Justice Committee wrote to Lord Carloway informing the top judge MSPs were minded to support the petition as the judiciary had not put forward any convincing arguments against the creation of a register of judges’ interests p reported here: JUDGES MUST DECLARE: Holyrood Justice Committee back cross party supported proposal to require Scotland’s judges to declare all financial interests and other links in a publicly available register of judicial interests

Scotland’s top judge Lord Carloway also wrote to the Justice Committee in late January, refusing a second request from the Justice Committee to face questions on his opposition to the creation of a register of judicial interests.

Lord Carloway’s most recent refusal to give evidence and his letter are 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’

Letter from Justice Secretary Humza Yousaf to Margaret Mitchell, Convener Justice Committee 07 February 2020

Public Petition PE 1458: Register of interests for members of Scotland’s judiciary

Thank you for your letter of 22 November asking me to review the evidence you heard on 19 November and the previous evidence taken regarding this petition and to then set out in detail why I do not think it is necessary to establish a register.

The evidence of 19 November: Written Evidence

On the 19 November, the Committee considered written evidence in the form of a letter from the petitioner. I think it is important to address a number of issues with the evidence contained in his letter. The Lord President does not appoint judges or sheriffs to the bench. Judicial appointments are made by the Scottish Ministers on the recommendation of the Judicial Appointments Board for Scotland (JABS). JABS are an independent statutory body and carry out a rigorous recruitment process which involves written application, tests, interview, references and background checks carried out before recommendations are made based on merit from candidates who meet statutory criteria.

The petitioner highlights the press coverage of two former Scottish judges sitting in other jurisdictions. One of these judges was retired, the other was still a temporary judge at the relevant time. Once a member of the judiciary has retired, the individual would not be included in any proposed register of interests. Temporary judges are not full time salaried judiciary. These are judges who can be called on to cover gaps in the court rota and therefore not covered by the restrictions on other employment which full time judiciary are. Whilst a register of interests would have disclosed this additional work, it would not have prevented it being carried out.

Since the Petition was originally introduced to the Parliament, a register of recusals was introduced in 2014 and, I understand, is being used by both the judiciary and those appearing in court. From 1 February 2018, the register was extended to also include members of the Scottish Tribunals. The reasons for recusal tend to relate to personal knowledge of a litigant or witness or previous involvement in another relevant case. The register of recusals does not appear to have highlighted the sort of problems with conflicts of interest of the nature that the petitioner is concerned about. For clarification also, there are 277 justices of the peace, rather than 450.

The proposed reforms to the law of corroboration in Scotland, which the petitioner refers to, were aimed at addressing the difficulty in prosecuting certain types of criminal cases . These proposals were based on detailed research and analysis conducted by Lord Carloway and set out in a published report. It is difficult to see the relevance of this as evidence in support of a register of judicial interests.

The petitioner cites extensive written submissions of evidence in relation to this petition and the Committee have asked that I review all previous evidence. In doing so, I can see that almost half of those submissions are from the petitioner and over one third are either correspondents declining to make a submission or from the Scottish Government, the Scottish Courts and Tribunals Service or the Lord President and present evidence which is not in support of the register. The petitioner’s submissions do not always raise new evidence and cover some matters that would be outwith the scope of this petition.

Oral evidence: In terms of the oral evidence taken, a considerable part of this discussion focussed on the system for complaints about members of the judiciary. I note the point raised that Scotland differs from other jurisdictions in that upheld complaints are not published. I agree that this is a matter that consideration could be given to as it is transparent and consistent with the complaint process for many professions, however complaints against the judiciary are the responsibility of the Lord President and there may be valid reasons why complaints are not published. I also note the distinction that was explained by Ms Ali between judicial decisions and service complaints about the judiciary. This was followed by discussion on independence and accountability.

I have also considered the written and oral submissions from Professor Alan Paterson, the academic who has contributed views on this petition. I note that Professor Paterson told the Public Petitions Committee that he had not reached a concluded opinion on a register of interests for the Scottish judiciary. He explains that this question comes back to the role of the judiciary in a democracy and there is a need to balance judicial independence and accountability. Professor Paterson told the Public Petitions Committee that he considers transparency as part of accountability. I would agree with this point and I’m of the view that the judiciary’s decision making is transparent and subject to appeal.

International factors: At the time the Petition was lodged, and in a number of the petitioner’s subsequent written submissions, reference is made to the New Zealand Parliament’s consideration of a judicial register of interests. By a large majority, the New Zealand Parliament voted down a Bill to create a register after considering the whole issue and its difficulties. Few analogous jurisdictions to Scotland have legislated for a judicial register of interests, and those that have did so in response to evidence of challenges specific to those jurisdictions. South Africa, for example, created one as part of cementing its new democracy.

The Council of Europe Group of States Against Corruption (GRECO) is an independent international body tasked with monitoring and advancing anti-corruption measures in countries across the world. It has examined the need for a judicial register of interests twice in Scotland and the most recent report of the Fourth Evaluation Round concluded that there was no evidence of corruption in relation to the judiciary in Scotland or of judicial decisions being influenced inappropriately. They do not recommend the introduction of an asset declaration scheme.

Ways to introduce a scheme: Your letter also asked for the Scottish Government’s view of what would be involved in establishing such a register and whether this would require primary legislation or could be achieved by some other means.

At present, and in line with the requirement to uphold the continued independence of the judiciary, set out in section 1 of the Judiciary and Courts (Scotland) Act 2008, Scottish Ministers do not have existing powers to establish such a register, whether voluntary or mandatory. Accordingly primary legislation would be required to implement any such register.

I would caution however that if such a register were to be established by way of legislation, rather than through the powers of the Lord President, this may be perceived as undermining the principle of judicial independence and the separation of powers between the judiciary and other branches of government.

Conclusion: My predecessors set out in detail in earlier correspondence the safeguards in place. These safeguards are the judicial oath, the statement of principles of judicial ethics and the various rules made under the Judiciary and Courts (Scotland) Act 2008 which concern complaints about the judiciary and judicial conduct. I would draw particular attention to the statement of principles of judicial ethics. This is some thirty five pages long and sets out clearly the standards judicial office holders are expected to meet. Breach of the ethics can result in serious consequences for a judicial office holder. Having considered the evidence, I share the views of both of my predecessors that there are sufficient safeguards in place to ensure the impartiality of the judiciary.

As mentioned previously, in the time since this petition was lodged with the Parliament, further measures have been introduced for, and by, the judiciary; such as the register of recusals and publication of judicial expenses and overseas travel. I believe that these measures have increased the transparency of the judiciary.

I am also mindful of the statutory requirement within the Judiciary and Courts (Scotland) Act 2008, that Scottish Ministers and Members of the Scottish Parliament must uphold the continued independence of the judiciary.

I have given further consideration to the matter and have considered the evidence before the Justice Committee. I remain of the view that it is not necessary to establish a register of interests. I hope the detail of this letter explains my reasons for that

EIGHT YEAR 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

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.

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’

Lord Carloway refused request to face MSPs. SCOTLAND’S top judge Lord Carloway – has refused a second request from Holyrood’s powerful Justice Committee to face questions on judges’ opposition to an EIGHT YEAR petition calling for the creation of a register of judicial interests - Petition PE1458: Register of Interests for members of Scotland's judiciary

In a letter to Margaret Mitchell MSP – Lord Carloway (real name Colin Sutherland) informed the Convener of the Justice Committee he would not attend Holyrood to “rehearse the same arguments which have not apparently found favour”.

The uncompromising – yet unconvincing letter from the top judge is a veiled reference to previous unconvincing arguments against judicial transparency put forward by both Lord Carloway and his predecessor - Lord Brian Gill – who both demanded an end to MSPs investigations of judges’ interests.

The letter from Scotland’s top judge to MSPs - dated 29 January 2020 but only published by Holyrood earlier this week – is loaded with contentions that judges can only judge judges – and ends with a previously used veiled threat to the Scottish Parliament over alleged constitutionality of elected politicians creating legislation to require judges to declare their interests.

Lord Carloway also rehearses previous arguments put forward to MSPs on sponsored studies by EU judicial quango groups – even though the UK left the European Union on 31 January 2020.

It should be noted both the Public Petitions Committee and Justice Committee have heard the same arguments put forward by the judiciary over the course of eight years, yet both Committees found judges’ arguments against transparency and judicial declarations to be unconvincing against the weight of cross party, media and public support for a judicial register.

And in November 2019, the Convener of the Justice Committee wrote to Lord Carloway informing the top judge MSPs were minded to support the petition as the judiciary had not put forward any convincing arguments against the creation of a register of judges’ interests p reported here: JUDGES MUST DECLARE: Holyrood Justice Committee back cross party supported proposal to require Scotland’s judges to declare all financial interests and other links in a publicly available register of judicial interests

The cross party backed judicial register 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.

The Justice Committee’s note of support follows over SIX YEARS of investigations by the Scottish Parliament’s Public Petitions Committee – who also concluded a register of judges’ interests was workable and could be created – despite similar arguments put forward by Carloway’s predecessor Lord Brian Gill who warned MSPs they did not have the power to require judges to declare their interests.

The decision by the Public Petitions Committee to endorse the petition was reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

And, like Lord Carloway – Brian Gill refused two requests to face MSPs questions on the petition – only finally showing up at Holyrood in November 2015 after the top judge retired earlier that year.

The Justice Committee will consider Petition PE1458 at a meeting on Tuesday 10 March 2020.

Lord Carloway’s letter to Margaret Mitchell MSP Convener of the Justice Committee:

I thank you for your letter of 22 November 2019 in which you indicate that the Justice Committee is inclined to support the principle behind the petition of a judicial register of interests. I have, once again, considered the matter very carefully. As I mentioned in my letter of 23 August 2019, if substantive new issues had been identified then I would have been happy to address them. However, no new issues have been identified.

Over the course of 7 years, I and my predecessor have repeatedly explained our view that a register of judicial interests is constitutionally inappropriate, unnecessary, disproportionate, unsupported by objective evidence, and incapable of achieving its stated aim. On a practical level, it would have negative effects on judicial retention and recruitment at a time when attracting quality applicants for judicial office is, as I suspect you are already aware, extremely challenging. It would be cumbersome to operate. It would provide additional means for disgruntled litigants to target judges and their families. Elected office and judicial office are not comparable. The checks and balances applicable to each are different by conscious design. Judges and sheriffs are fully accountable for each and every decision which they take. Those decisions are taken in open forum and subject to appeal. At each stage the actions of the court are governed by clear and transparent legal rules. The nature of political decision-making is very different from that of legal decision-making. That is why the checks and balances are correspondingly different.

The Committee will be familiar with the Council of Europe Group of States Against Corruption (GRECO). The Committee undertakes regular independent investigations into anti-corruption mechanisms in member states. It concluded (at para 133), once again, in its Fourth Evaluation Round Report about our judiciary that there is no "element of corruption in relation to judges, nor is there evidence of judicial decisions being influenced in an inappropriate manner... What was said in the First Evaluation Round Report with respect to the absence of a system for formal registration of interests of judges is still valid. GRECO did not recommend the introduction of an asset declaration system at that time and the GET found no change of circumstance that require such a recommendation at this time". GRECO is an important independent source of evidence on how our legal system functions. In the absence of any objective suggestions of corrupt practices, and by that I mean from those without axes to grind, I would suggest that no additional controls, beyond those already in place, are desirable.

The Committee appears already to have reached at least a preliminary view on the matter. There would seem to be little value in wasting the Committee's time with a third Parliamentary appearance only to rehearse the same arguments which have not apparently found favour.

I have mentioned previously that the question of whether to have a register of interests for the judiciary is not something that can be considered in isolation. It forms part of a larger equation which bears on judicial recruitment, retention, reward, quality, independence and effectiveness. As part of ensuring that this equation continues to balance, the Committee may be interested to know that a judicial working group of the Judicial Council, comprising members drawn from each of the judicial ranks, has been working for some months on a project to refresh the Statement of Principles of Judicial Ethics. The Statement is a cornerstone in supporting judicial independence, impartiality and integrity. It builds on tire UN Bangalore Principles.

At its most recent meetings, the group has focussed on the extent to which judges may undertake extra judicial activities. In due course, the Judicial Council will be considering whether or not, among a range of other measures, a system of permissions for commercial activity has a place in any adjusted code of ethics. Regardless of the decisions which the group may eventually reach, the Committee can have confidence that they will have been arrived at after deep consideration of the likely effects of any change across the whole judicial system. That is the most effective means by which such questions can be explored and resolved.

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. I note that almost every country in Europe and the Commonwealth agrees with this analysis.

While Scotland’s judiciary have conducted an eight year resistance to proposals to make the judiciary as transparent as elected politicians, other jurisdictions such as Norway, the USA, and other countries have operated registers of judicial interests and requirements on judges to publish their financial reports without any issues.

In Norway, judges must complete a register of interests listing honorary posts, investments, memberships of political parties, companies, religious communities and charities among others.

The Norwegian model of judicial interest disclosure was hailed by the Public Petitions Committee as model for Scotland’s judges to follow.

More on Norway’s register of judges’ interests can be found here: NORWAY, M’LORD: Judicial interests register of Norway cited as example to follow for Holyrood MSPs six year investigation to create a register of judges’ interests in Scotland

EIGHT YEAR 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

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.

JUDGES MUST DECLARE: Holyrood Justice Committee back cross party supported proposal to require Scotland’s judges to declare all financial interests and other links in a publicly available register of judicial interests

Justice Committee issues backing for Judicial Register. A CROSS-PARTY supported proposal to require all members of Scotland’s near 700 strong judiciary to declare and register their financial interests, links to big business and other connections has moved a step closer after MSPs declared their support for Petition PE1458: Register of Interests for members of Scotland's judiciary

The Justice Committee published a letter from Margaret Mitchell MSP, Convener of Holyrood’s powerful Justice Committee to Scotland’s top judge Lord Carloway – in which Ms Mitchell states: “After this evidence session and a previous one, the Committee is minded to support the principle behind the petition of a judicial register of interests as it has yet to hear a convincing case against.”

The cross party backed judicial register 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.

Support from the Justice Committee to advance the judicial transparency proposal - comes after six years of investigation by the Scottish Parliament’s Public Petitions Committee – who unanimously backed the petition in the face of strong resistance from Scotland’s judiciary, and two years of work by the Justice Committee - who have now gone on the record with their support for a publicly available register requiring all judges in Scotland to declare their interests - in the same way all members of the Scottish Parliament declare their interests.

While in theory, all UK judges including Scotland’s judiciary have a duty to declare all relevant interests in cases they hear in court, a number of serious cases have come to light via media investigations – revealing judges are routinely failing to declare key interests – even when their own family members are before them in court.

In one serious example of a failure to declare interests, Lord Malcolm (real name Colin Campbell QC) heard a damages claim EIGHT TIMES while his own son – Ewen Campbell – represented the defenders in the same court.

The case involving Lord Malcolm generated significant interest as it was not just any ordinary case – it was an appeal linked to a multi million pound damages claim involving defenders represented by a then serving member of the judiciary – (now former Sheriff) Peter Watson - who was later suspended for a record three years plus over his links to a £28M writ involving the £400M Heather Capital Hedge Fund collapse - and then resigned in 2019.

The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest,  is reprinted 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

A number of other cases where judges failed to recuse have also come to light, and cases where the Judicial Office failed to publish recusals – including at least one hearing involving Lord Bracadale (real name Alistair Campbell) - were drawn to the attention of the Public Petitions Committee during their long six year investigation of the proposal calling for a register of judicial interests.

An investigation revealing the Judicial Office altered the Register of Judicial Recusals - one year after Lord Bracadale recused from a case – and only after journalists questioned the Judicial Office on the omission, can be found here: RECUSALS UNLIMITED: Doubts over credibility of register of judges’ recusals - as Judicial Office admit court clerks failed to add details of senior judges recusals – then silently altered records a year later

The full letter from Margaret Mitchell, Convener of the Justice Committee – to Lord Carloway - was published by the Justice Committee as follows:

Dear Lord President,

Petition 1458 - Proposal to establish a register of judicial interests

I write regarding the above Petition which the Justice Committee considered on 19 November. After this evidence session and a previous one, the Committee is minded to support the principle behind the petition of a judicial register of interests as it has yet to hear a convincing case against.

The Committee thanks you for your letter of 23 August 2019 on this subject. However in light of the above, members agreed it wanted to give you the opportunity to relate your views, in person, as to why a register of judicial interests should not be established.

I should be grateful, therefore, if you would indicate whether you, or a representative of the Judicial Office, would be willing to give oral evidence on the petition in the New Year. If so, in order to move forward. I would be grateful if your officials would contact the Justice clerks to discuss a mutually convenient date.

Finally it would be extremely helpful if you would provide further details on your views of what would be involved in establishing such a register and whether this would require primary legislation or could be achieved by some other means through the powers that you have as Lord President.

I look forward to your response. Best wishes,

Margaret Mitchell MSP Convener, Justice Committee

While Scotland’s judiciary have conducted an eight year resistance to proposals to make the judiciary as transparent as elected politicians, other jurisdictions such as Norway, the USA, and other countries have oeprated registers of judicial interests and requirements on judges to publish their financial reports without any issues.

In Norway, judges must complete a register of interests listing honorary posts, investments, memberships of political parties, companies, religious communities and charities among others.

The Norwegian model of judicial interest disclosure was hailed by the Public Petitions Committee as model for Scotland’s judges to follow.

More on Norway’s register of judges’ interests can be found here: NORWAY, M’LORD: Judicial interests register of Norway cited as example to follow for Holyrood MSPs six year investigation to create a register of judges’ interests in Scotland

After hearing evidence from Scotland’s first Judicial Complaints Reviewer (JCR) – Moi Ali in a hearing last November, the Justice Committee have also invited Lord Carloway to attend Holyrood to face further questions on his opposition to judicial transparency.

During that hearing in November, and in response to a question from MSP Shona Robinson on concerns raised by Lord Carloway of difficulties in hiring judges – Moi Ali said: “If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary.”

Video Footage of this exchange can be found here:

Moi Ali - Judicial interests register will not deter judicial candidates - Justice Committee 19 November 2019

A full report on the Justice Committee evidence hearing with Moi Ali on 19 november 2019 can be found here: JUDICIAL REGISTER: Ex-Judicial Investigator responds to top judge’s claims a register of judges’ interests may affect judicial recruitment – “If a lawyer were put off by having to be open and transparent it does raise questions about their suitability to be members of the judiciary”

Earlier, in September 2013, and during the term of her office as Judicial Complaints Reviewer - Moi Ali gave evidence to the Scottish Parliament’s Public Petitions Committee, and supported calls for the creation of a register of judicial interests. The hearing is reported in more detail along with video footage of the 2013 evidence session here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

EIGHT YEAR 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 backed calls for further work on the judicial interests register during at least THREE further Holyrood hearings, including the latest hearing from June 2019, 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 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 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

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.