Wednesday, March 12, 2014

Judicial Interests & Accountability: ‘What we expect of the judiciary in Scotland and how accountable it is in the public’s eyes, not the eyes of a self serving group of judicial appointees’

Are judges accountable? The lack of judicial interests register gives cause for concern. THE most senior members of Scotland’s judiciary appear to be more concerned with how accountable they are to each other, rather than how accountable they are to the public. The entire issue of judicial accountability in Scotland, and the lack of it has come to the fore during evidence heard  by MSPs of the Scottish Parliament’s Public Petitions Committee who are considering Petition PE1458: Register of Interests for members of Scotland's judiciary.

Petition PE1458, raised by law journalist Peter Cherbi calls for a published register of interests documenting full disclosure of judges sizeable financial wealth, hidden family & business connections within the legal profession and controversial topics such as directorships, secret earnings from law firms & big business, criminal records of judges, and offshore ‘tax efficient’ trusts and investments which currently remain secret.

Over the course of the last year, MSPs have heard evidence from Moi Ali, Scotland’s Judicial Complaints Reviewer (JCR), on how the judiciary deal with complaints. The JCR also expressed her support for the petition and said a register of interests would enhance public confidence in the judiciary, reported previously here: As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

However, MSPs have encountered a brick wall at the hands of Scotland’s top judge the Lord President, Lord Brian Gill - who is overtly hostile against the transparency proposal. Lord Gill has also refused to appear before MSPs and face questions in public or provide answers to the Scottish Parliament’s investigation of the effect a lack of judicial declarations of interest on the justice system.

Private meeting with judge underlined judicial opposition to declarations of interests. Only recently after a private meeting with the Lord President and two MSPs from the Petitions Committee was an offer to publish limited data on judicial recusals. The notes of the private meeting between the judge and two senior politicians also underlined the Lord President’s continued opposition to any further transparency in the form of a register of interests for Scotland’s judiciary.

The clerk’s notes of the meeting indicated Lord Gill went so far to claim that a register of judicial interests was not workable, reported here: Judicial Transparency is “not workable” claims Scotland’s top judge Brian Gill in private meeting with Holyrood msps on register of judicial interests petition

However, the Lord President’s “unworkable” myth has little evidence in fact, considering the Scottish Court Service has operated a register of interests for its own staff for several years, as does Scotland's Crown Office & Procurator Fiscal Service.

Also contained in the Committee Clerk’s notes of the recent private meeting at Holyrood between the judge and politicians, Lord Gill made the point he had full confidence in his colleagues.

However, at last week’s meeting Petitions Committee member John Wilson MSP pointed out that without a register of interests it would be difficult for members of the public to deal with issues of conflict of interest within the judiciary.

Commenting on Lord Gill’s short letter to the Petitions Committee, offering uncertain detail on recusals only, Mr Wilson said: “The difficulty is that, as far as I understand, it is still down to a judge or a sheriff to decide whether to recuse. Without a register of interests, how would anyone dealing with the courts understand or realise when a judge should recuse? Without any evidence or a register of interests to say otherwise, judges and sheriffs can continue to hear whichever case they want to hear and recuse when they decide to do so.”

“The petition clearly indicates that a judge or sheriff might have financial interests relating to shareholdings in a company or they might hold a company directorship, and that might be directly relevant to a case. Unless there is a register that clearly shows the financial interests of judges and sheriffs and their families, it is difficult for an ordinary member of the public to understand the relationships that judges or sheriffs might have.”

Commenting further on the Lord President’s position regarding his colleagues in the judiciary, Mr Wilson said: “Most importantly, Lord Gill talks about confidence in the judiciary. The committee is here to look at the confidence that the public has in the judicial system in Scotland. That should underlie our investigations into the issue.”

“I welcome Jackson Carlaw’s suggestion that we try to get a chamber debate on the issue, but there are things regarding the petition that we need to examine further, particularly in light of the responses that we have had. We need to get assurances from Lord Gill and the Scottish Government that we can move forward in relation to what we expect of the judiciary in Scotland and how accountable it is in the public’s eyes—not the eyes of a self-serving group of judicial appointees.”

Last week’s Petitions Committee discussion of Petition PE1458 concluded with a proposal for further enquires of Lord Gill. Members also agreed to seek a full debate on the petition in Holyrood’s main chamber which may come after the Summer recess.

The Scottish Parliament have now published the official report of last week’s debate. Therefore, in keeping with maintaining an accurate and publicly accessible record of the debate in Scotland on judicial interests, the full report is reprinted on Diary of Injustice today with accompanying video footage of the parliamentary committee debate.

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

Petition PE1458: Register of Interests for members of Scotland's judiciary

The Convener:  The fourth current petition is PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. Members have a note by the clerk, which is paper 4. We also have the clerk’s note of the meeting between the Lord President, Chic Brodie and me, and we have the submissions.

I will make a couple of points before we debate the petition. The petitioner suggests that we call the Scottish Court Service to give evidence on its existing staff register of interests. Moi Ali, the Judicial Complaints Reviewer, has provided an interesting additional paper in which she makes the powerful point that the issue is the“failure to recuse” and “not ... a dearth of recusal data.”

Her letter is direct and straightforward and she pulls no punches about the issue. The committee might wish to write again to Lord Gill to ask whether he considers that a record of declarations of interests, similar to that for several members of the judiciary in the SCS annual report, could be set up for other judges and sheriffs.

Members will know that only a handful of them are involved in the SCS board; a much greater number are not members of that board, so they are not required to declare interests. Those are key points for the committee. I throw the discussion open to members.

Chic Brodie:  I think that I missed something that happened early on in the process and before I became a member of the committee. The petition calls for a register of pecuniary interests of judges, and I do not know where the recusal bit came in.

On the conversations that we had with Lord Gill, I see from my notes that a request was made regarding the financial interests information that is available via the SCS on three members of the SCS board although, in fact, it turns out that there are seven judicial members of the SCS board. I know that it is difficult, but I still think that it might be worth while trying to keep the issue of financial interests separate from the issue of the declaration of a potential conflict of interest.

We might return to the latter at some stage in the future, but we might want to expand on the information that is already available via the SCS on the financial interests of the judiciary.

The Convener:  If I understand the Judicial Complaints Reviewer’s letter, the crucial issue is recusal before a case. For example, if a judge was dealing with a case in which he or she had some financial interest, they would recuse before it. So, it is about the ability to recuse over a financial issue, which I think is the point that Moi Ali is making.

Jackson Carlaw:  I find no fault in the way in which we have conducted ourselves on the issue. I read the letter from Moi Ali with a great deal of interest.

If it were  possible to divide up the time appropriately, I suggest that we should take the subject to the chamber as part of a Public Petitions Committee debate. It would be useful to go beyond the bounds of the committee to allow some of the issues to be stated more  widely in the chamber and for the Cabinet Secretary for Justice to have to respond formally to some of the issues that have arisen.

Although we have moved matters forward in a limited way by the nature of the discussions that we have had, frankly, I do not think that any of us is wholly satisfied with the outcome or totally persuaded by the case that has been made to us.

The Convener:  That is a useful point. I inform the committee that, at the Conveners Group, we put in a bid for a debate on organ donation. That has been agreed, but we are fine tuning whether it will be in April or May. However, any further bids for debates would just join the queue at the Conveners Group. There is always a healthy interest in bids for committee plenary debates. I think that such debates are a useful opportunity. My view is that this petition would be a good subject for a plenary debate. It might have to be after the summer recess but, whenever there is a slot, the committee can be assured that I will argue for it at the Conveners Group.

Jackson Carlaw:  It would be a useful subject for us to take to the chamber. As matters stand, we have probably got as far as we are likely to get with the issue. As I said, I do not think that we are entirely satisfied with the outcome at which we have arrived. It would be useful for us to make that clear and to allow the issue to have a wider profile.

Chic Brodie:  In general, I agree with Jackson Carlaw. I do not think that there was any intended obfuscation when we met the Lord President, but there was the conflation of pecuniary interests with recusals on the basis of family relationships. It is argued that judges do not know whether someone whom they know will come up in a case. If we can separate those issues, I still think that there might be a requirement to focus on the half-commitment that we have on the information that is available through the SCS board on pecuniary interests. After that, we can look at how we might deal with other complaints.

The Convener:  Thank you for that. Do members agree to that course of action?

John Wilson:  The discussion has been useful. One or two members referred to Moi Ali’s timely response to the committee in relation to the issues that have been raised about publishing information on a judge or sheriff recusing himself or herself from hearing a case.

The second paragraph of the Lord President’s letter states: “I am pleased to say that my officials have devised a means by which this can be achieved. Court Clerks will inform the Judicial Office for Scotland when a judge or sheriff has to recuse.”

The difficulty is that, as far as I understand, it is still down to a judge or a sheriff to decide whether to recuse. Without a register of interests, how would anyone dealing with the courts understand or realise when a judge should recuse?

Without any evidence or a register of interests to say otherwise, judges and sheriffs can continue to hear whichever case they want to hear and recuse when they decide to do so.

The petition clearly indicates that a judge or sheriff might have financial interests relating to shareholdings in a company or they might hold a company directorship, and that might be directly relevant to a case. Unless there is a register that clearly shows the financial interests of judges and sheriffs and their families, it is difficult for an ordinary member of the public to understand the relationships that judges or sheriffs might have.

Most importantly, Lord Gill talks about confidence in the judiciary. The committee is here to look at the confidence that the public has in the judicial system in Scotland. That should underlie our investigations into the issue.

I welcome Jackson Carlaw’s suggestion that we try to get a chamber debate on the issue, but there are things regarding the petition that  we need to examine further, particularly in light of the responses that we have had. We need to get assurances from Lord Gill and the Scottish Government that we can move forward in relation to what we expect of the judiciary in Scotland and how accountable it is in the public’s eyes—not the eyes of a self-serving group of judicial appointees.

The Convener:  I thank John Wilson for his comments. He is right to go back to the fundamentals and what the petition is calling for. The register of pecuniary interests is key.

It sounds as though the committee is enthusiastic about bidding for a plenary debate. If that is agreed by members, we will make appropriate urgent requests to get that in the queue for a future meeting. Do members also agree that we write to Lord Gill to clarify whether he would consider setting up a record of declarations of pecuniary interests, similar to the one that already exists for several members of the judiciary?

Members indicated agreement.

The Convener:  Do we need to cover any other points?

John Wilson:  I suggest that we write to the Scottish Government to ask for its views on the exchanges that have taken place between the committee and those who have provided evidence to us and whether, based on the information that we have, it would consider reviewing its decision not to engage in the process.

The Convener:  That is a fair point. Do members agree to do that?

Members indicated agreement.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, 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

28 comments:

Anonymous said...

Good headline and Mr Wilson is correct - this is about how we view the judges not how the judges view each other.

Good luck for your petition Mr Cherbi.

Anonymous said...

John Wilson is to be commended on the issues he raised at the meeting.

As a solicitor myself I am positive about a register because the existence of one will allow us to represent people more effectively than in certain circumstances where they believe we do not.

I am of course referring to what Peter said in a written response to the committee relating to legal agents who are reluctant to raise a recusal with members of the judiciary.

A register would set out all information of all members of the judiciary and end any potential disagreements down the line or in the court itself.

Would also do wonders for solicitor-client relationship and give some people a little more faith in the legal system!

rant over and thanks.

Anonymous said...

"THE most senior members of Scotland’s judiciary appear to be more concerned with how accountable they are to each other, rather than how accountable they are to the public."

Yes exactly Peter and very much the reason on its own why we need your register of judicial interests and this excellent debate you have prompted.

Well done.

Anonymous said...

“The petition clearly indicates that a judge or sheriff might have financial interests relating to shareholdings in a company or they might hold a company directorship, and that might be directly relevant to a case. Unless there is a register that clearly shows the financial interests of judges and sheriffs and their families, it is difficult for an ordinary member of the public to understand the relationships that judges or sheriffs might have.”

Fully agree with Mr Wilson the register must exist and have all these details he describes.

It is as obvious as that!

Anonymous said...

No doubt about it you are exposing the judges to the rest of us and good on you its about time the judges are taken on and called to account.

Anonymous said...

Some BBC Scotland coverage of this important debate would be appreciated?

Anonymous said...

Obviously little in the way of an improvement from Gill and his chums.There must be a lot of corruption in the judiciary for Mr top judge to take things this far just to protect his colleagues he claims to have so much confidence in.

Confidence in that they are corrupt?I think so and probably everyone else watching that clip and the others thinks the same as I do.

Anonymous said...

Are judges accountable?
CLEARLY NOT!

Anonymous said...

the judge on my sexual abuse damages claim in the Edinburgh Court of Session stopped 3 witnesses on the orders of the churches lawyers and he is the same religion and big figure in same church no recusal and no one told me of it at the time I lost the case and the other victims my lawyer took on have all had their cases messed up my lawyer refuses to take any phone calls or emails from me about it and all the other victims have the same treatment the lawyer is also in the same church and now we all got together thinking all has been just to get money out of us some are legal aid too and the lawyer had it going for years before court so a lot of money has been spent for nothing maybe was always going to be this way any chance of support on it?

Anonymous said...

Who gave judges the right to have all these secret interests and not declare?
The register of their interests must be published and also inquiry into why this Lord Gill has been able to avoid the parliament for a year on this.

Oh and no judge allowed to lead the inquiry because the judges cannot be trusted.

Diary of Injustice said...

@ 12 March 2014 15:19

If you feel like putting your comment in a letter to the Petitions Committee please do ... support from the legal profession itself for a register of interests along the lines you describe would be a positive step forward ...

@ 12 March 2014 19:26

Your case sounds like a good one for a media investigation so please email in your details to scottishlawreporters@gmail.com

@ 12 March 2014 19:37

The judges gave themselves the right to remove themselves from the need of transparency and declarations of interest ...

Anonymous said...

I am amazed this debate about judges and interests is even taking place.Anyway well done keep up the good work and keep it in the headlines because we need same here in England.

Anonymous said...

A real eye opener from John Wilson I hope the other msps get into this and demand the judge appear at the committee like everyone else.

Who do these judges think they are anyway avoiding the same law everyone else has to live by?

Anonymous said...

Anonymous said...
John Wilson is to be commended on the issues he raised at the meeting.

As a solicitor myself I am positive about a register because the existence of one will allow us to represent people more effectively than in certain circumstances where they believe we do not.

I am of course referring to what Peter said in a written response to the committee relating to legal agents who are reluctant to raise a recusal with members of the judiciary.

A register would set out all information of all members of the judiciary and end any potential disagreements down the line or in the court itself.

Would also do wonders for solicitor-client relationship and give some people a little more faith in the legal system!

rant over and thanks.

12 March 2014 15:19
-------------------------------

How can you talk about an improving lawyer client relationship when the Law Society is so anti client, the SSDT is so anti client, the SLCC is so anti client and that the standards of Scottish lawyer's continues on a downward spiral?

You cannot talk about Judges on one hand and then dismiss the massive problem of crooked Scottish lawyers?

Judges were once Scottish lawyers and some have been Scottish crooked lawyers?

The problem with Scottish lawyer's is they have been defending businesses who use sharp practises, where they enter into contracts with other businesses with the intention at the outset of looking for areas where they can exploit, cheat and inveigle money using the Scottish lawyers to add clauses in the contract to trip up whoever the business has the contract with?

Scottish lawyers would think that this is a legitimate way for their client businesses to make money under false pretences (after all this murky practice employs lawyers on both sides of the contract)?

The thing is that because of the lax (unlawful) regulatory system for Scottish lawyers, we now have crooked Scottish lawyers looking at their clients as a hunter looks at it's prey?

As an opportunity to squeeze cash out of their poor victim, who are seen as a legitimate target in their world of professional lying, arrogance and self importance?

To disregard and deride any talent they may have and instead turn all of their efforts to the easy cash, easy outcome and not to forget the Olympic sized swimming pool of gravy they feel is their due reward that is the Scottish Legal Aid Fund?


If you really want to improve the way that client's view Scottish lawyers, then you have the opportunity together with a few good lawyer colleagues to call out Law Society of Scotland Office Bearers as crooks and set up an alternative representative body for Scottish lawyers to smash the monopoly and stranglehold round Scotland's neck that is the Law Society of Scotland?

Anonymous said...

Here comes the judge lol well more like there goes the judge!

The way that Gill has treated the parliament and the rest of us on this is just a disgrace and should not be allowed to get away with it.

Anonymous said...

What an arrogant judiciary you have in Scotland its a wonder they did not try to D notice the Parliament and forbid any debate.Lots to hide for the judges obviously.

Anonymous said...

Kind of advanced for a blog going after judicial interests type stuff.Anyway good luck and hope this is all set out in this register of yours and a very good idea it is too.

Anonymous said...

The msps need to step up their investigation into these judges and their interests along with the debate they are asking for.There is something going on here in the background big time with the judges who are afraid they are going to be exposed in public.

Anonymous said...

Cant get around that private meeting on a petition calling for transparency!

Anonymous said...

I do not expect much in this next round of excuses and threats from the "top judge" who is increasingly becoming a joke.

Not that it will matter to him much because most of these kinds of people in their positions of immense power are completely detached from reality to the point of psychosis.

Anonymous said...

I prefer to stay out of the petition for obvious reasons you will be well aware of.However I do support your aim and there are a few others in the profession who would like to see this register in print asap.

Anonymous said...

"THE most senior members of Scotland’s judiciary appear to be more concerned with how accountable they are to each other, rather than how accountable they are to the public"

Got it in one and John Wilson's remarks are spot on about this situation on the judicial interests and who is accountable to whom.

The judges know they will look after each other as they have always done but this time it is not about them in control it is about democratically elected parliaments making law and bringing everyone into like with the same transparency.

Good stuff mate!

Anonymous said...

Talking to a colleague who thinks your petition is a good one I asked him why no one had bothered to ask about judges interests until you came on the scene with pe1458.

He reminded me of what happened in the Magic Circle affair where journalists ended up in custody after their own investigations into the judiciary.The fear those arrests caused has continued until you broke the ceiling on this.The Sunday Mail coverage is a great bonus to this along with your own and these video clips from Holyrood.

No matter what eventually happens with your petition this entire debate and Gill's bad attitude will be remembered for a long time.I think you may get this register of judges interests.

Anonymous said...

Anonymous said...

the judge on my sexual abuse damages claim in the Edinburgh Court of Session stopped 3 witnesses on the orders of the churches lawyers and he is the same religion and big figure in same church no recusal and no one told me of it at the time I lost the case and the other victims my lawyer took on have all had their cases messed up my lawyer refuses to take any phone calls or emails from me about it and all the other victims have the same treatment the lawyer is also in the same church and now we all got together thinking all has been just to get money out of us some are legal aid too and the lawyer had it going for years before court so a lot of money has been spent for nothing maybe was always going to be this way any chance of support on it?

12 March 2014 19:26
==================================
I have a revulsion of anyone in positions of power. Lawyers made a fortune defending the church clearly many in the church are false witnesses too, child abusers who have used canon law to cover up their crimes, simply another corrupt self regulation set up. What they all forget is that the victims grow up and tell the truth.

Anonymous said...

I get a sense from the discussions the judges have made clear there is going to be no register of THEIR interests.

The Scottish Parliament has to overcome this and make sure there is.

We do not live in a judicial dictatorship Mr Brian Gill where judges can pick and choose what kinds of transparency they follow and then demand different of the rest of us.

Anonymous said...

Tony Benn

If one meets a powerful person ask them five questions:

“What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?” If you cannot get rid of the people who govern you, you do not live in a democratic system.
================================
Well we cannot get rid of the Judges who have secret interests we the public were not consulted about. This must be the more repugnant form of power, unrestrained secret power. And even if you can get rid of people who govern you what is the point if they all have the same views. Only a self protecting judiciary could manifest this.

Anonymous said...

Your post title sums it up perfectly.

The Judges have become drunk on power and secrecy and are no longer representing the Scottish People.

Thank you for being Scotland's conscience.

Anonymous said...

Gill must be very angry his attempt to shut down the msps debate has led to these kinds of headlines and even more scandals about judges.