Independent Law journalists report on legal news for consumers, litigants & Scotland's legal community including features on justice, access to justice, law reform, the judiciary, politics & in-depth investigations, analysis and commentaries on legal related issues.
Top judicial post of Lord President taken by Lord Carloway.SCOTLAND’S Lord Justice Clerk - Lord Carloway - has been confirmed as the new Lord President & Lord Justice General of the Court of Session.
The move, elevating the Lord Justice Clerk to the top job of Lord President comes after a secretive panel constituted by First Minister Nicola Sturgeon under the Judiciary and Courts (Scotland) Act 2008.
The behind-closed-doors panel, comprising Sir Muir Russell & Mrs Deirdre Fulton from the Judicial Appointments Board for Scotland, Lord Reed of the UK Supreme Court and Court of Session judge Lady Dorrian - began a search in July for a new top judge - with orders to recommend a name to the First Minister by 30 October 2015.
Lord Carloway – real name Colin Sutherland - is known for his backing for the Scottish Government’s failed plan to remove corroboration from Scots law.
While in the role of Lord Justice Clerk, Lord Carloway authored the Carloway Review Report & Recommendations 2011 – which backed a joint effort by Scottish Ministers and the Crown Office to remove the centuries old safeguard against wrongful convictions requiring evidence in criminal trials to be corroborated from two independent sources.
The campaign to retain corroboration was backed by Lord Gill - the then Lord President - who spoke out at the Scottish Parliament’s Justice Committee - defining the injustice safeguard as one of the "finest features" of Scotland’s justice system. Video footage of Lord Gill’s evidence to MSPs can be found here: Lord President Brian Gill evidence to Justice Committee on retention of corroboration
The same Justice Committee – who voted against plans to remove corroboration from Scots Law - dubbed Lord Carloway “disdainful and dismissive” over his support for scrapping the need for corroboration in criminal cases.
In April of this year, as the Scottish Government retreated on their plans to abolish corroboration - Lord Carloway hit out at elements of the legal profession who campaigned for retention of the injustice safeguard.
Lord Carloway said: "Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest."
The judge’s remarks provoked robust responses from Thomas Ross - the Chair of the Criminal Bar Association, reported in The Herald HERE
Mr Ross argued lawyers opposed to ending the safeguard - under which two pieces of evidence are required to secure a conviction - were acting against their own financial interests.
Recently Lord Carloway was appointed head of the Scottish Sentencing Council – a quango created by Scottish Ministers which was condemned by two previous Lord Presidents – Lord Gill and Lord Hamilton – as a political attempt to interfere with the judiciary and Scotland’s courts system.
The appointment of Lord Carloway to the role of Lord President – made by the Queen upon receiving a nomination from the First Minister - retains the 500 year old tradition of male only top judges.
Lord Carloway will be formally installed as Lord President early in the new year, 2016.
If Lord Carloway’s stated views on ‘transparency and self interest of vested legal interests’ are anything to go by, perhaps the new Lord President will reach a different view from his predecessor Lord Gill – who spent two of his three year term as top judge fighting plans to enhance judicial transparency with a register of judges’ interests.
The petition calls for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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 proposal to require judges to declare their interests enjoys cross party support, and was widely backed by MSPs during a full debate in the Scottish Parliament’s main chamber on 9 October 2014 - reported in full with video footage of MSPs and Scottish Ministers speaking during the Holyrood debate, here: Debating the Judges.
Previous articles on the lack of transparency within Scotland’s judiciary, investigations on judicial interests 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
James Wolffe QC, Dean of the Faculty of Advocates, said: “His appointment as head of Scotland’s judiciary is richly merited – having regard not only to his personal qualities but to his distinguished career of service, as an advocate before his appointment to the bench in 2000, as a judge since that date, and since 2012 as Lord Justice Clerk.
“Lord Carloway becomes Lord President at an important time for our legal system as it responds to technological, social and institutional change. I look forward very much indeed to working with him.”
Christine McLintock, President of the Law Society of Scotland who spent much of the week condemning legal aid cuts, commented: “I warmly congratulate Lord Carloway on his appointment. As one of our most senior and respected judges, and with a wealth of experience across both criminal and civil law, he has already made a substantial contribution to justice and the rule of law here in Scotland. I have every confidence he will make an even greater contribution as our Lord President.
“Lord Carloway assumes this role at a critical time for Scotland’s justice system, with major reforms to improve the efficiency of our courts but also pressures from reductions in public spending. We are also seeing a transformation in the legal services market, with new business models, changing expectations from clients and a greater internationalism amongst legal firms. Against this backdrop of change, we look forward to working with Lord Carloway, building on the excellent relationship we have enjoyed with him as Lord Justice Clerk.”
The appointment now creates a vacancy for the office of Lord Justice Clerk.
The First Minister is required by s19 of the Judiciary and Courts (Scotland) Act 2008 to establish a panel to recommend individuals suitable for this appointment.
Lord Carloway’s most recent appearance at the Scottish Parliament came during an evidence session before the Justice Committee on 8 December 2015 during which the Lord Justice Clerk gave evidence to MSPs on the Abusive Behaviour & Sexual Harm (Scotland) Bill.
Lord Carloway is a graduate of Edinburgh University (LLB Hons) and was admitted to the Faculty of Advocates in 1977. He served as an Advocate Depute from 1986 to 1989 and was appointed Queen’s Counsel in 1990. From 1994 until his appointment as a Judge he was Treasurer of the Faculty of Advocates.
Lord Carloway was appointed a Judge in February 2000 and was elevated to the Inner House in August 2008. He became Lord Justice Clerk in August 2012.
He was an editor of ‘Green’s Litigation Styles’ and contributed the chapters on ‘Court of Session Practice’ to the Stair Memorial Encyclopedia and ‘Expenses’ in Court of Session Practice.
LordCarloway was the joint editor of ‘Parliament House Portraits: the Art Collection of the Faculty of Advocates’ and is a former president of the Scottish Arts Club. He is the author of the Carloway Review on key elements of criminal law and practice which was published on 17 November 2011. Many of the recommendations from this review have been taken forward in the Criminal Justice (Scotland) Bill, approved by Parliament earlier this week.
Lord Carloway is also currently leading a steering group overseeing the Scottish Court and Tribunal Service review into Evidence and Procedure, including options for improving how children and other vulnerable witnesses provide evidence in criminal cases.
Billions in public cash keep ‘struggling’ lawyers afloat.SCOTLAND’S legal profession took home a staggering £138.6 million in public cash last year – for giving Scots access to justice – according to figures released by the Scottish Legal Aid Board (SLAB) today.
However, the latest round of payments of public subsidies to struggling solicitors, down from last year’s £150.5 million and marked for a further reduction by Finance Secretary John Swinney to £126.1m in 2016 budget - sparked ire at the Law Society of Scotland who yesterday attacked the Finance Secretary’s legal aid reductions as “unrealistic”.
Figures provided by the Scottish Legal Aid Board reveal Scotland’s legal profession have taken home over £1.2 billion in public cash since the great Financial crash of 2008: 2014-2015: £138.6m, 2013-14 £150.5m, 2012-13 £150.2m, 2011-12 £150.7m, 2010-11 £161.4m, 2009-10 £150.5m, 2008-09 £150.2m, 2007-08 £155.1m, TOTAL: £1.207 Billion.
Commenting on the figures, the Scottish Legal Aid Board said “Services funded through the Scottish Legal Aid Board (SLAB) provided help during 2014-15 to tens of thousands of often vulnerable people across Scotland. Legal aid funding allowed people to access the services of private practice solicitors, SLAB’s employed solicitors, law centres, and over 100 grant funded projects.”
Legal Aid Big Spenders: See which law firms, Advocates & Solicitor Advocates took home Legal Aid millions in 2014-2015. Glasgow based law firm Livingstone Browne Solicitors remain the top-earning law firm, taking home legal aid payments of £1.9 million. Brian McConnachie QC is Scotland's top legal aid earning advocate, receiving £303,000, Gordon Jackson QC earned £282,000 and third highest earner is Donald Findlay OQ on £258,600.The top legal aid earning solicitor advocate was Iain Paterson of Paterson Bell solicitors – who received £267,200 of public cash for legal services.
The total cost to the taxpayer of legal assistance in Scotland was £138.6 million in 2014-15, a decrease of 8% compared to the previous year. This £11.9m decrease is partly due to changes in the flow of criminal cases through the justice system in 2014-15. However, 2014-15 also saw falling applications and grants of summary criminal and civil legal assistance, offset partly by a slight increase in solemn criminal legal aid and continued growth in children’s legal assistance.
Colin Lancaster, Chief Executive of SLAB, said: “Over the last year, legal aid has again helped people across the country, many of them on low incomes and with caring responsibilities, defend themselves against criminal charges or deal with their problems on debt, housing, mental health or family breakdown.
“Publicly funded legal assistance helps people to resolve the problems they encounter in day to day life by pursuing or defending their rights and as such it makes a vital contribution to tackling inequalities in Scotland.
“The fall in expenditure in 2014-15 is not a signal that the financial challenges are over or that the legal aid system doesn’t need further reform and streamlining.
“The impact of the UK Spending Review means that significant further changes are needed to meet the Scottish Government’s budget allocation for legal aid. While the legal aid fund is demand led, and no-one who is eligible will be refused legal aid, expenditure savings will need to be found.
“Access to justice can only be maintained in the face of these financial challenges by working collaboratively with those interested in protecting the vulnerable through a legal aid system that is broad in scope and encourages a strategic approach to meeting needs. I look forward to doing so over the coming months.”
Iain A Robertson CBE, Chairman of SLAB, said: “Although we have seen the general demand for legal assistance fall again in 2014-15, the funds available to manage public finances are also falling. The need to reduce expenditure on legal aid has not gone away, and will increase.
“We will work collaboratively with others in the justice sector to deliver improvements that will enable further reductions in legal aid expenditure, including by streamlining the legal aid system where possible.
“It is imperative that discussions on reforms are approached strategically and in the context of the justice system as a whole, to protect the best interests of those in need of support from the legal aid system. Otherwise Scotland risks its proud record on maintaining access to justice.”
Total expenditure on the Legal Aid Fund in 2014-15 fell by 8% to £138.6 million compared to the previous year. The 2013-14 figure was £150.5 million. SLAB assessed 212,000 applications for legal aid and paid 241,000 accounts of solicitors and counsel. SLAB managed three grant funding programmes, which enabled support for 108 projects around Scotland. The projects helped nearly 27,000 new clients. SLAB grant funding also contributed to a new Scottish Women’s Rights Centre which helps women experiencing gender based violence. SLAB processed all application and account types within its headline performance indicators. SLAB reduced the average number of working days it takes to process civil legal aid applications by six working days. It also reduced the average number of working days to making a payment on an account by six working days. Expenditure on criminal legal assistance fell by 10% compared to the previous year, from £94.0 million to £85.0 million. Net expenditure on civil legal assistance was £43.9 million, a fall of 8% compared to the previous year from £47.7m. There has been a fall in the take-up of advice and representation in civil matters. Children’s legal assistance (legal aid and ABWOR) cost £5.2 million, an increase of 7% compared to the previous year, from £4.9 million. Gross expenditure on grant funded projects was £6.3 million which increased from £5.5 million as a result of the Scottish Government and Money Advice Service providing extra funding for an extended programme. Payments to solicitors totalled £107.7 million, advocates £11.9 million and solicitor advocates £3.0 million. Payments on outlays (e.g. expert witnesses and court reports) fell by 8% compared to the previous year, from £19.5 million to £17.9 million. Grants of all types of criminal legal assistance have fallen compared to the previous year, apart from a small rise of 1.2% in grants of solemn criminal legal aid. This reflects a longer term trend of declining summary court business. Grants of civil legal assistance have fallen by 9.5% compared to the previous year. Demand has fallen due to the easing of pressures stemming from the economic situation. The largest volume year-on-year falls were in cases with subject matters of contact, separation and divorce. All these areas have been steadily declining for the past few years. Legal aid grants in relation to intervention orders and guardianship orders under Part 6 of the Adults with Incapacity (Scotland) Act 2000 now represent the largest category of legal aid certificates issued at 28% of all grants. Grants of this nature rose 19% in 2014-15 compared to the previous year. Grants of children's legal assistance continue to be affected by the changes that came into force on 24 June 2013 that extended the scope and availability of legal assistance for children's hearings. It is still too early to establish a proper comparison in volumes between years.
Responding to cuts in Legal Aid, and the Scottish Government’s Draft Budget for 2016-17, announced yesterday, Christine McLintock, President of the Law Society of Scotland, made the following statement to legal aid practitioners: “The 2016-17 budget allocation for the legal aid fund has been set at £126.1 million, the lowest it has been for well over a decade. This is a reduction from the 2015-16 budget of over 7% (from £136.1 million to £126.1 million).
“Legal aid spending is demand led and not limited by the budget and so we would expect the Scottish Government to continue to meet all its obligations in terms of demand for legal aid over the coming year. However, as you are aware, through its savings initiatives, the Government tries to reduce expenditure to meet the budget allocation.
“The Scottish Government has set the financial target for 2016-17 at a level that:
Is lower, in cash terms, than levels of legal aid expenditure from over 20 years ago (in 1994/95 the total expenditure on legal assistance was £132.1 million).
Is clearly unrealistic if you are trying to maintain an effective and sustainable legal aid system. Given existing figures, in order to reach its target, the Government would need to cut expenditure by at least £10 million by 2016-17. We do not see how this can possibly be achieved without seriously damaging both access to justice and the justice system.”
The Euro study showed that Scotland disciplined a tiny number of lawyers compared to countries of similar size. Just three were struck off and 13 reprimanded in Scotland in 2010. Denmark, with a similar population, took action against 309 lawyers, with six struck off and 145 fined. And in Finland, also close in size, 99 rogue solicitors were sanctioned. Critics blame the Law Society of Scotland’s dual role of representing lawyers while also acting as regulator.
A large proportion of alleged criminals reported to prosecutors in Scotland are not being put in the dock. Of 265,830 cases sent to the Crown Office, only 41.7 per cent were brought to court. In England and Wales, 90.6 per cent of all cases resulted in court action.
The difference is thought to be partly due to Scotland’s recent introduction of spot fines and fiscal fines for what the authorities insist are more minor offences. Critics claim such fines lead to a secret justice system.
The report reveals that Scotland’s sheriffs top the European pay league.
Our sheriffs, with an average salary of 150,106 euros (£120,000), were number one, ahead of the Irish and Swiss. Next were sheriffs’ counterparts in England and Wales, who were paid 120,998 euros (£95,000). Not only were sheriffs the highest-paid, they also topped the table comparing their earnings to the national average. They earned 5.2 times the average Scot’s wage.
Scots legal regulator refuses to name corrupt lawyers. DECISIONS relating to investigations by the Scottish Legal Complaints Commission (SLCC) on complaints about corrupt solicitors - are to be published for the first time in Scotland later this month.
However, lawyers who regularly swindle their clients and taxpayers can breathe a sigh of relief - as the SLCC confirmed it will not publish the names of corrupt lawyers or their law firms in any ‘anonymised’ decisions to be published every few months on the legal regulator’s website.
The move by the pro-lawyer SLCC to publish censored details of legal complaints in Scotland - comes several years after theLegal Ombudsman equivalent in England & Wales began to publish Public interest cases & case summaries and Ombudsman decision data identifying the number of decisions against named law firms in the rest of the UK.
This imbalance leaves consumers of legal services in Scotland at a disadvantage - as Scots are not able to find out complaints histories of their solicitors or law firms, while consumers in England & Wales are able to make a more informed decision on which solicitor to use.
In a statement released to the media, the Scottish Legal Complaints Commission claimed it cannot identify corrupt or crooked lawyers - due to sections of the Legal Profession and Legal Aid (Scotland) Act 2007 - inserted at the behest of the legal profession – which prohibit anyone from the SLCC identifying a rogue solicitor or law firm.
David Buchanan-Cook, head of oversight at the SLCC, explained: "While we hope that this will also demonstrate better accountability and the transparency of our complaint handling process, we also needed to balance that transparency with our duty to protect the confidentiality of complainers and practitioners. Unlike our counterparts south of the border, our legislation prevents us from 'naming and shaming' individual solicitors or firms without their express permission unless the complaint is unusual and it is in the public interest to publish. Very few, if any, inadequate service complaints meet those criteria.
"For these reasons, we have chosen to publish anonymous complaint information in the form of very short case studies and have, as far as possible, removed any identifying features. As such, the complaint information is only a brief summary of the information made available to the Determination Committee. In making decisions, consideration will have been given to specific facts and circumstances which, again for reasons of confidentiality, cannot be provided publicly.
"We hope, however, that the published information is sufficient to provide general guidance to the profession and that it will help promote best practice in the provision of legal services."
Coinciding with the new service, the SLCC is launching a quarterly ‘Law Society’ style newsletter specifically aimed at providing practical and topical support for client relations managers.
The newsletter – seen as a move to bring the SLCC back into self regulation fold after years of claiming ‘independence’ - will contain regular best practice features, guest articles, prior notice of future CPD events and will provide comment on some of the trends and features emerging from the previous quarter’s published decisions.
It is worth noting the latest window dressing developments at the Scottish Legal Complaints Commission come after coverage in the mass media of several high profile cases involving corrupt lawyers dodging criminal prosecution for fraud and provision of dishonest legal services which often result in substantial and unrecoverable financial losses to clients.
A BBC Scotland investigation Lawyers Behaving Badly – exposed serious flaws in the world of solicitors self regulation where lawyers investigate their own.
An investigation by BBC’s Lawyers Behaving Badly featured among others, the case of John O’Donnell – a serial rogue solicitor who has featured in numerous media reports.
The programme - aired in January 2014 to much consternation of the Law Society, certain parts of the legal profession and elderly aggrieved legal hacks – revealed staggering differences in how dishonesty is tolerated in the Scottish legal profession in comparison to cases in England & Wales – where dishonesty is automatically a striking off offence.
Alistair Cockburn, Chair, Scottish Solicitors Discipline Tribunal. Featured in the investigation was the Scottish Solicitors Discipline Tribunal (SSDT) Chairman’s attitude towards solicitors accused of dishonesty in their representation of clients legal affairs. During the programme, it became clear that dishonesty among lawyers in Scotland is treated less severely, compared to how English regulators treat dishonesty.
Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?
Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society. We are mindful, particularly when reminded of the lay members, of a duty to the public.
One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct.
Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?
Alistair Cockburn: No it’s not a question of saying sitting comfortably with me. I’ve told you…
Sam Poling: OK that you would accept?
Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty. One has to assess the extent to which anyone suffered in consequence of that dishonesty. You have to take into consideration the likelihood of re-offending and then take a decision. But you make it sound as if it’s commonplace. It isn’t. Normally dishonesty will result in striking-off.
English QC’s agree ‘dishonesty’ is a striking off offence. The SSDT Chairman’s comments on dishonesty compared starkly with the comments of the English QC’s who said dishonesty was undoubtedly a striking off offence.
Andrew Hopper QC: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”
Andrew Boon Professor of Law, City University, London: “They actually say in the judgement they would have struck him off but the client hadn't complained.”
Andrew Hopper QC “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”
Andrew Boon, Professor of Law: “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”
As Sam Poling went on to report: “but he [O’Donnell] wasn't stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”
Related to a lawyer? Board positions on offer at legal quango.SCOTLAND’S pro-lawyer regulator of solicitors – the Scottish Legal Complaints Commission (SLCC) has announced a new recruitment round for legal and ‘non-legal’ board members.
The five year term for two ‘non-legal’ and one legal board member, scooping up a fee of £212 per day including expenses claims for just about anything candidates can imagine are up for grabs at the ‘independent’ legal complaints quango - now run by a former director of the Law Society of Scotland.
For the daily sum and expenses – funded by hikes in legal fees to clients, SLCC board members will be expected to attend or participate in board meetings held in Edinburgh on the last Tuesday of every second month (January, March etc.).
On the last Tuesday of the other months, members can pick up a fee for attending the “Performance Board” - lasting no more than an hour.
Determination Committees – which rubber stamp ‘recommendations’ from the Law Society of Scotland - are usually held on Wednesdays in Edinburgh.
If appointed you will be expected to take up your position as either Legal or Non-legal Member on 1st April 2016. Each appointee will be expected to attend a two day induction, which is currently scheduled for 11th and 12th April 2016.
Full details of the ‘skills’, ‘knowledge’ and ‘experience’ required for these appointments are contained in the Applicant Information Pack.
Closing date for applications is Monday 4th January 2016. Interviews will be held on the 27th and / or 28th January 2016 in Edinburgh.
The recruitment notice put out by the SLCC states Mr Stevenson “can also arrange a chat with one of the current Members” and that “Discussions are confidential, and separate to the recruitment process.”
Stevenson’s appointment came after a bad year for the Law Society in the wake of the BBC Scotland investigation Lawyers Behaving Badly - which blew the mask off lawyers investigating their own and legal aid fraud.
With the announcement of the latest round of board positions to the seven year old solicitors complaints quango, it is worth looking back on the register of interests of the current complement of the SLCC’s board – which has managed to steer the legal complaints quango in every direction the Law Society of Scotland insisted.
Bill Brackenridge: Non-Executive Director of the State Hospital Board. Chairman, Argyll & Bute Adult Protection Committee.
George Clark: Formerly Director of Scottish Building Society and SBS Mortgages Limited (retired 30/5/13). Formerly Consultant/Partner with Morton Fraser LLP from 1979 until 2012.
Chair of the Private Rented Housing Panel in Scotland. Previously, Chairman of Edinburgh Solicitors Property Centre from 1988 until 2001. Chairman of Homeowner Housing Panel and Private Rented Housing Panel.
Ian Gibson: Member of consultant's panel for the Charities Aid Foundation. Volunteer business mentor Scottish Chamber of Commerce. Cousin is a partner in Kirklands Solicitors Perth. Nephew is a solicitor advocate with Simpson Marwick; his partner is an advocate in Axiom stables. Trustee CLIC Sargent. Secretary of Newtonmore Camanachd Club.
Dr Samantha Jones: Director of Islandscape Photography (self-employed). Freelance consultant. Formerly, an Associate Consultant with Valuta Ltd during (2010). Previously, Clerk to the Standards Committee and HR Change Programme Manager for Scottish Parliament (2000-2010). During time with Scottish Parliament had regular professional contact with staff of the Government Legal Service for Scotland (GLSS) (2000-2010). A Licentiate of the Royal Photographic Society - voluntary unpaid role. ALB Navigator at Tobermory RNLI and the station's Lifeboat Press Officer - voluntary unpaid role. Local Development Officer, Ulva Ferry (Part time 2.5days per week) funded by Highlands and Islands Enterprise (from 1 April 2014). Freelance Development Agent, Argyll and the Isles Tourism Co-Operative (up to eight days per month from 1 October 2014).
Ian Leitch: Member of the Law Society of Scotland. Member of Audit Scotland Board and Chair of Remuneration and HR Committee (from 1 April 2014). Chair of Audit Scotland Board (from 1 October 2015).
Iain McGrory: Commissioned the services of Simpson and Marwick Solicitors, Aberdeen and Edinburgh Branches, on behalf of Grampian Police between 2002 and 2010. Independent consultant trading as IJM Professional Services providing a range of services including complaint handling and developing performance and disciplinary procedures. In 2013 chaired a Working Group on behalf of the Scottish Government - Police Reform Team, tasked with producing updated Conduct Regulations for the new Police Service of Scotland. On 8 July 2014 appointed as a Disciplinary Pool Lay Member of the Institute and Faculty of Actuaries On 1 July 2015 appointed as a member of the Cabinet Office Security Vetting Appeals Panel. Provides ad hoc consultancy services to the Police Investigations and Review Commissioner (PIRC).
Maurice O'Carroll: Practising Member of the Faculty of Advocates 1995 - date. Ad hoc Advocate Depute for Crown Office 2002 - date. Brother of Sheriff Derek O'Carroll, resident Sheriff at Airdrie [who was a practising Member of the Faculty of Advocates (2000-2010).] Legal Chairman for the Homeowner Housing Panel and Private Rented Housing Panel 2012 to date.
Fiona Smith: Formerly HR Director for NHS Orkney from 2004 to 2011. Professional dealings with the NHS Central Legal Office between November 2004 and February 2011. Partner in Sorton Partners, a business advice and consultancy partnership. Owner of Niteo, a training and coaching business. Associate of VA Consultants, a training and development provider. Associate of Taylor Clarke, an Organisational Development consultancy business. Director of the Orkney Hyperbaric Trust, an unpaid voluntary role. Committee member of the Orkney West Mainland Industrial and Horticultural Society, an unpaid voluntary role.
Kevin Dunion: Formerly Scottish Information Commissioner from 2003 to 2012. Director, Dunion Associates Ltd, providing research, consultancy and training. Honorary Professor and Executive Director, Centre for Freedom of Information, School of Law, University of Dundee. Visiting Professor, Northumbria University. Board Member, World Bank Access to Information Appeals Board. Retained services of Brodies LLP and Anderson Strathern whilst Scottish Information Commissioner. Member, Standards Commission for Scotland (from September 2015).
Scots solicitors should be stripped of powers to police themselves. FROM SCANDAL to scandal, the all too powerful Law Society of Scotland has managed to dodge calls for the legal profession to be stripped of their self regulation powers which ensure lawyers investigate themselves, and ultimately look after their own.
No matter the amount of damage to personal lives, families & businesses of clients, tens of millions a year in clients cash and property lost to cheating solicitors with a practising certificate backed up by their trade union body – the Law Society of Scotland - the legal profession has sailed through each scandal to blag another day.
Even after two Scottish Parliamentary inquiries, the same faces sit proud at their Law Society desks, revelling in their defence of their colleagues. Grim.Almost, horrific.
Those Parliamentary inquiries? The first - in 2003 was compromised by its pro self-regulation approach right from the start.
After taking tea with the legal eagles, the Justice Committee went onto conclude there should be no change to lawyers patting themselves on the back after another successful burglary well done.
And the second Justice 2 Committee inquiry in 2006 which promised so much - ended in the brutally watered down Legal Profession and Legal Aid (Scotland) Act 2007 courtesy once more of vested legal interests, hysterical threats from legal chiefs and Law Society arm twisting.
Today as much as yesterday, rogue lawyers still pat themselves on the back for every fraud dodged, every ruined client and complaint put to sleep. Why not? They have ultimate protection from clients, delivered by their very own colleagues at the Law Society of Scotland.
And of course, let’s not forget the Scottish Legal Complaints Commission (SLCC) - trumpeted by the Scots legal establishment as the ‘independent’ face of legal regulation in Scotland since 2008.
The Law Society also appointed Neil Stevenson - one of their own former Directors - to the top CEO post at their friendly ‘indy’ £3m a year SLCC quango earlier this year.
With the accumulating scandals of Scottish lawyers up to no good – from Christopher Hales to John O’Donnell to the usual suspects and more - where the Law Society of Scotland investigates its own, over and over, and pats itself on the back for a job well done protecting colleagues, calls are again now being made to strip lawyers of their powers to police themselves.
CRITICS are calling for an end to the secretive “old boys’ club” which sees Scots lawyers police themselves.
It took the Law Society of Scotland four years to give police details of its probe into an alleged mortgage fraud linked to solicitor Christopher Hales and MP Michelle Thomson.
But legal experts insist this would not have happened if we had the same system of outside supervision that operates down south.
Last night a former Cabinet minister said it is “astonishing” that a trade body remains in charge of disciplining lawyers here.
Ex-Labour MP Brian Wilson said: “It’s clearly an old boys’ club and a closed shop which very much looks after its own.
“The Law Society seems to be under no obligation to report serious wrongdoing to the police until it suits them.
“It’s fundamentally wrong for lawyers to have special status. Scotland needs an independent system of regulation to protect the public.”
In July 2011 the Law Society uncovered a “potential fraud” involving 13 property deals linked to the SNP’s Ms Thomson and others.
It had an agreement at the time to share information with the then-Scottish Crime and Drug Enforcement Agency.
But its “suspicious activity report” on Mr Hales was sent to the London-based Serious Organised Crime Agency, which focused on money laundering and terrorist financing.
The lawyer was suspended in September 2011 but was not struck off until May 2014.
And it took the Law Society another 14 months before it handed over its papers on the case to the Crown Office.
Police were then instructed to probe Ms Thomson — now MP for Edinburgh West.
But today we can reveal cops down south would have been alerted four years ago.
Since 2007 all lawyers in England and Wales have had to answer to the independent Solicitors Regulation Authority.
And an SRA spokesman said: “It is standard practice to disclose information to police should we uncover evidence of suspected criminality.”
Scots Labour shadow justice secretary Graeme Pearson, above right, blasted the Thomson delay, saying: “An early report of suspected criminality is easier to investigate.”
Lawyer and ex-Scotland Yard detective Rowan Bosworth- Davies added: “This should have been reported to local cops as soon as possible.”
In other cases the Law Society has unearthed evidence of suspected criminal behaviour by lawyers — but did not inform police.
So instead of facing trial, briefs had their knuckles rapped by legal colleagues.
And victims of crooked lawyers say the complaints system is stacked against them.
A Law Society of Scotland spokeswoman said: “We work alongside an independent complaints-handling body and independent discipline tribunal.
“Much evidence suggests the system of regulation in England and Wales is more complicated and expensive.
“We are legally obliged to report to the authorities where we have concerns about possible criminality, and we do.”
HITMAN LINK:
An investigator who was knifed more than ten times suspected a lawyer of ordering the hit.
Ex-Law Society boss Leslie Cumming, 71, believed an Edinburgh solicitor, who we cannot name, paid thug Robert Graham to carry out the 2006 attack in the city’s Murrayfield.
Mr Cumming, told us 19 days before he died of cancer in February: “There were two solicitors who were well connected with criminals – he was one looked at”
SNEAK BRIEF:
A SHAMED lawyer dodged being struck off despite breaking money laundering rules.
Glasgow solicitor John O’Donnell, 65, struck a secret deal with the Law Society in 2009 in which he agreed to stop working. He had been found guilty of six counts of misconduct and once “borrowed” £60,000 from an unwitting client.
But the brief used another lawyer’s name to continue duping punters.
Former Justice Secretary calls for top judge to appear at Holyrood.SCOTLAND’S as yet unnamed new top judge who will take on the role of Lord President & Lord Justice General – is to be called to give evidence to the Scottish Parliament’s three year probe on creating a register of interests for judges as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.
The call to hear from the new top judge was made by former Justice Secretary and Petitions Committee member Kenny MacAskill MSP during a brief discussion of Petition PE1458 at last week’s meeting of the Public Petitions Committee on 1 December 2015.
Calling on whoever is named to be Scotland’s new top judge, Kenny MacAskill said: “We have heard from the previous Lord President and I think that we should hear from the new Lord President, whoever he is likely to be—I do not think that there is a “she” on the shortlist. That appointment is likely to be made in the next week or so, so there is still time for him to appear before us.”
The petition calls for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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 proposal to require judges to declare their interests enjoys cross party support, and was widely backed by MSPs during a full debate in the Scottish Parliament’s main chamber on 9 October 2014 - reported in full with video footage of MSPs and Scottish Ministers speaking during the Holyrood debate, here: Debating the Judges.
The Convener: Our next petition is PE1458, by Peter Cherbi, on the creation of a register of interests for members of Scotland’s judiciary. Members have a note on the committee’s previous consideration of the petition and the submissions from the petitioner.
Do members have any comments?
Kenny MacAskill: We have heard from the previous Lord President and I think that we should hear from the new Lord President, whoever he is likely to be—I do not think that there is a “she” on the shortlist. That appointment is likely to be made in the next week or so, so there is still time for him to appear before us.
The Convener: In that case, we will write to the new Lord President, as we said that we would.
Decision: The Committee agreed to write to the new Lord President once appointed.
Lord Gill vehemently opposes any call for judicial transparency and calls to require judges to disclose their interests, and twice refused invitations to appear before MSPs to give evidence on the probe into judicial interests.
Highlights of the former top judge’s vested interests must remain secret approach include:
In an angry exchange with MSP Jackson Carlaw, Lord Gill demanded to control the kinds of questions he was being asked. Replying to Lord Gill, Mr Carlaw said he would ask his own questions instead of ones suggested to him by the judge.
And,in responses to independent MSP John Wilson, Lord Gill dismissed media reports on scandals within the judiciary and brushed aside evidence from Scotland’s independent Judicial Complaints Reviewers – Moi Ali & Gillian Thompson OBE – both of whom previously gave evidence to MSPs in support of a register of judges’ interests.
In angry exchanges, Lord Gill accused American judges of being elected by corporate and vested interests and said he did not want to see that here. However, the situation is almost identical in Scotland where Scottish judges who refuse to disclose their interests, are elected by legal vested interests with hidden links to corporations.
Scotland’s current Judicial Complaints Reviewer Gillian Thompson OBE also backed the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.
Previous articles on the lack of transparency within Scotland’s judiciary, investigations on judicial interests 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
Mediation hearings hijacked, compensation only a fraction – say clients. THE LATEST annual report of the ‘independent’ Scottish Legal Complaints Commission (SLCC) - reveals increasing numbers of solicitors are evading full investigations and formal determinations on poor quality or dodgy legal services provided to Scottish consumers in the year 2014-2015.
The figures, based on complaints reported to the client-funded legal regulator from 1 July 2014 to 30 June 2015, reveal 1009 complaints about solicitors were ‘reported’ to the SLCC in the past year, and the number of complaints accepted for service and conduct rose from 319 to 424, with three cases relating to unnamed members of the Faculty of Advocates.
Nearly 200 cases were resolved or withdrawn before an eligibility decision was taken. The Complaints Commission claim 56 cases were resolved at mediation, a success rate of 76%.
However, the experience of clients reveal mediation is not an even handed or impartial approach.
Clients involved in mediation cases who contacted the media revealed that when they turned up for mediation hearings, the solicitors they had complained against brought additional representatives who were not supposed to be in attendance.
Clients revealed mediation hearings had been effectively hijacked mediation hearings by law firms with what one client described as “bully tactics”.
In another mediation hearing involving a client and a solicitor from a well known law firm, it was alleged the mediator desperately put forward the solicitor’s view there should be no settlement – even before the mediation hearing began.
2014-2015 SLCC Annual report – complaints down, up & pennies to clients. The SLCC’s annual report also reveals that at investigation stage 60 cases were resolved by report, and 21 cases by conciliation, with 30 cases withdrawn. A total of 132 cases - down from 210 the previous year – went to determination, of which 109 were wholly or partly upheld.
The Scottish Legal Complaints Commission claim that a total of £401,340 (up from £365K in 2013-2014) was agreed or awarded in compensation, fee refunds and reductions to Scottish consumers for inadequate professional service by Scottish lawyers during the year.
However, as the SLCC has refused to quantify the scale of financial losses alleged in complaints made about solicitors, it is difficult to estimate what percentage of compensation is actually being handed back to clients wronged by their solicitors.
In one instance reported to the media, it has been revealed a single solicitor is being investigated over complaints relating to a trust fund valued at over £500,000. The complainants have not received any compensation to-date, and the case has been on-going for over a year, with pressure being exerted on the complainants to enter mediation.
Residential property transactions remain the most common sources of client complaints, at 29%, followed by litigation (20%), family law (16%) and executries, wills and trusts (15%).
The most frequent types of complaints concern failures to communicate; failures to advise; delays; failures to provide information; failures to follow instruction and failures to prepare adequately.
Chair Bill Brackenridge commented: “It has been a year of performance in handling complaints and ensuring consumers get redress from their lawyers if they’ve received an inadequate service. The annual report also shows that we’re using complaints data to improve professional standards across the wider regulatory system.”
“A personal highlight was our successful lobbying for the power to convene a statutory consumer panel, which is now informing our plans for the future and the quality of our day to day work."We were also delighted to recruit Neil Stevenson as our new chief executive, charged with leading a longer term plan for the organisation to ensure we deliver value to consumers and to the sector.”
Former Law Society Director of Professional Support - Mr Stevenson - said: “We’re in a great position and now we’re looking ahead to the next four years to make sure that the SLCC continues to make a difference for consumers and the profession. We are looking forward to going out to public consultation in January on an exciting new four year plan. Our plan will consider how consumers select and experience legal services and their needs when things go wrong with a service, rather than just looking at the system from a perspective of regulations and institutions.”
This year, the SLCC also dropped claims it was partly funded by the public after a statement which appeared in last year’s annual report angered the Law Society of Scotland.
Last year’s annual report under former Chief Executive Matthew Vickers, stated: “We are funded by a levy on the legal profession and hence, indirectly, from fees charged to the public.”
Under the new Chief Executive – Neil Stevenson - former Law Society Director of Representation and Professional Support – the annual report now states: “The SLCC receives no public money. We are funded by a levy on the legal profession, collected from individual practitioners by the relevant professional organisations."
However, Diary of Injustice revealed in 2008 - the SLCC had received around £2 million pounds of taxpayers money from the Scottish Government, which has never been repaid.
Funding for the SLCC is gathered from an annual levy on the legal profession – who in turn recover the levy with hikes in already sky high legal fees and charges to clients.
The Law Society’s decision to retake control of the ‘independent’ SLCC by placing one of their own in the CEO slot came after after the Scots legal profession was left reeling from the effects of the damaging BBC Scotland investigation “Lawyers Behaving Badly” - which blew the mask off lawyers investigating their own colleagues and how the legal profession covers up legal aid fraud.
Since the BBC programme aired in January 2014, the Law Society demanded significant changes to the SLCC after concluding the hapless complaints quango – staffed mostly by former Law Society insiders – failed to stand up for lawyers during the BBC Scotland investigation.
The legal quango – staffed mainly by former Law Society employees, solicitors and Ministerial appointed board members claiming up to £150K a year in expenses, has racked up staggering costs of well over £20 million to Scottish clients in the past seven years, with little to show for it.
Lord Gill demanded MSPs close probe on register of judges’ interests.A ‘RETIRED’ top judge who twice snubbed giving evidence to the Scottish Parliament and instead flew to Qatar for a taxpayer funded five day state visit - has demanded MSPs close a three year investigation into proposals calling for judges to declare their interests.
The proposals, widely backed by MSPs after the issue was debated in the Parliament’s main chamber last October 2014 - Debating the Judges - call for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.
During tough exchanges between the ‘retired’ judge and MSPs, Lord Gill got into arguments with members of the Petitions Committee, reflecting his underlying aggressive tone at being hauled before MSPs he twice refused to meet.
In an angry exchange with MSP Jackson Carlaw, Lord Gill demanded to control the kinds of questions he was being asked. Replying to Lord Gill, Mr Carlaw said he would ask his own questions instead of ones suggested to him by the judge.
And,in responses to independent MSP John Wilson, Lord Gill dismissed media reports on scandals within the judiciary and brushed aside evidence from Scotland’s independent Judicial Complaints Reviewers – Moi Ali & Gillian Thompson OBE – both of whom previously gave evidence to MSPs in support of a register of judges’ interests.
A statement issued by Lord Gill at the time of Watson’s suspension said: “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”
In angry exchanges, Lord Gill accused American judges of being elected by corporate and vested interests and said he did not want to see that here.
However, the situation is almost identical in Scotland where Scottish judges who refuse to disclose their interests, are elected by legal vested interests with hidden links to corporations.
Speaking after the evidence session, legal insiders said: “Lord Gill appeared to have been made Lord President for a day to go into the Scottish Parliament and order the closure of a petition.”
The move goes back on a decision under the Committee’s previous Convener – John Pentland MSP – to call the new Lord President who is still to be named after a secret six month selection process.
Speaking to the Scottish Sun newspaper, Petitions Committee Convener Michael McMahon MSP said the committee would now write to the new Lord President instead.
And, while saying he was impressed by Gill’s ability to defend his corner, MSP Mr McMahon described Lord Gill as displaying “passive aggression” during his evidence before the committee.
The Public Petitions Committee will debate the evidence and demands from Lord Gill at a future hearing on 1st December 2015.
The Scottish Sun reports:
Holyrood axes plan for grilling top judge
Exclusive: By Russell Findlay, Scottish Sun 15 November 2015
POLITICIANS have axed plans to grill Scotland's next top judge on secret wealth and business links.
The U-turn came as the former Lord President finally agreed to discuss a judicial register of interests with MSPs.
After tetchy exchanges with Lord Gill, 73, the petitions committee have now dropped the move.
It will instead write to his successor then decide whether to invite them.
Committee chair Michael McMahon said: "Despite Lord Gill's passive aggression, I was impressed by his ability to defend his corner.
"The committee has reviewed its decision to automatically invite the incoming Lord President."
The peer twice snubbed committee invites when he held the £220,655 post.
Legal reform campaigner Peter Cherbi said: "The public is entitled to hear the views of the serving Lord President rather than the retired one."
The Convener (Michael McMahon): Good morning, everyone. Welcome to the 18th meeting in 2015 of the Public Petitions Committee. I remind all those who are present, including members of the committee, that mobile phones and BlackBerrys should be completely turned off because they interfere with the sound system even when they are switched to silent.
The first item of business is consideration of PE1458, by Peter Cherbi, on a register of interests for members of Scotland's judiciary. The committee will be taking evidence from the Rt Hon Lord Gill, who is a former Lord President of the Court of Session. I welcome Lord Gill to the meeting. He is accompanied today by Roddy Flinn, who is legal secretary to the Lord President. I invite Lord Gill to make a brief opening statement, after which we will move to questions.
The Rt Hon Lord Gill (Former Lord President of the Court of Session): Thank you, Mr Convener, for your welcome. Your predecessor wrote to me in June this year to invite me to discuss with the committee my views on what the petition seeks. I am happy to do that today. It seems to me that the petition raises some straightforward questions as to the purpose of the proposal and the problems that it seeks to deal with, if they exist.
Behind that, in my view, there are wider constitutional issues regarding the position of the judiciary in Scotland. Also, there is a question to be asked: what is the committee's opinion of the judiciary that we have?
I do not want to take up time—I want to leave as much time as possible for the committee's questions. For the moment, I shall simply say that I am not entirely certain what is to go into the proposed register, I am not clear what current problems there are that the register would solve and I am, therefore, sceptical about what it would achieve.
I hope that there will be time for us to take a wider view of the matter and to consider that perhaps the constitutional questions are such that the petition may not be the appropriate way to deal with them. It seems to me that there is a very serious question about why Scotland should wish to be out of step with every other jurisdiction in the United Kingdom, and with New Zealand, which is the example that the petition mentions.
With that, Mr Convener, I am happy to discuss whatever matters the committee wishes to raise.
The Convener: Thank you for introducing your thoughts for our consideration. I will pass over to members of the committee, because my throat may not last very long this morning; I do not want to use it too much.
John Wilson (Central Scotland) (Ind): I wish a good morning to Lord Gill and Mr Flinn. In what capacity is Mr Flinn here today in the witness chair? He works for the Lord President's office, and Lord Gill is a former Lord President. I just want clarity, given that when Lord Gill was Lord President he refused to come before the committee to give evidence. He met the previous convener and deputy convener privately to discuss the petition.
Lord Gill: I can answer that very simply. When I was Lord President, Mr Flinn was my legal secretary and he was closely involved in this aspect of the work of my office. He is here today simply because he is familiar with the documentation. If I need to refer to any documents, he will help me to do so. I think you said that he is a witness: he is not.
John Wilson: It is a matter of record in the paperwork that has been presented to the committee this morning. The agenda says that we will
"take evidence from—
Rt Hon Lord Gill, former Lord President of the Court of Session" and "Roddy Flinn, Legal Secretary to the Lord President."
I wanted clarification on that. I assumed that Mr Flinn was here because he was your legal secretary, when you were the Lord President.
Lord Gill: The agenda is wrong, Mr Wilson.
John Wilson: Lord Gill, I am reading from what I have in front of me. The agenda stipulates "take evidence from". I am sure that in your line of work—
The Convener: For clarity, if Lord Gill wants to defer to Mr Flinn to answer a question, or if a member of the committee wants to ask Mr Flinn a question directly, that will be perfectly in order, in which case Mr Flinn will be a witness. I do not think that it is any more complicated than that.
John Wilson: I am just trying to get it on the record because we had a problem when the
committee previously tried to get evidence. We will return to the issue later.
To get to the heart of the matter, we are discussing a petition that was lodged by Peter Cherbi. In your view, Lord Gill, is a register appropriate or necessary?
Lord Gill: I do not think that such a register is either of those things.
John Wilson: Right. Peter Cherbi has previously provided the committee with various pieces of evidence to justify his position. Since the petition was introduced, the register of recusals has been introduced. We now know of cases in which a judge or a sheriff has recused themselves because they have an interest. There was a situation in which a judge recused themselves because of a conflict that was represented by their membership of RSPB Scotland, which meant that they felt that they could not hear a case.
Part of the difficulty, as I understand it, is that the register of recusals is a voluntary register; it is up to judges and sheriffs to decide to recuse themselves from hearing a case. Surely if we had the type of register that is suggested by the petition, there would be less need for recusal because the interests of the person sitting on the bench in judgment of a case would be publicly available.
Lord Gill: There are two points to make in answer to that. One is that the register of recusals is not voluntary. To the best of my knowledge, the clerks of court are scrupulously accurate in keeping the register and therefore, wherever there is a recusal, you may depend upon its being recorded in the register.
However, perhaps the more important point is that there are countless cases in which the register does not even come into play. You may find in a sheriff court—particularly in the country areas—that the sheriff will say to the sheriff clerk that they should make sure that the sheriff does not get any cases that come to the court involving such-and-such a body or person, because they have a connection. The result is that such cases never reach the sheriff, so the register never comes into play. That has always been the case. After a while, most sheriff clerks will know exactly the sorts of cases to which the local sheriff may have some sort of connection. I do not really see it as a problem.
The other thing of course—forgive me for adding this point—is that what has become very clear from the register of recusals is that the vast majority are related to circumstances that a register such as that which the petition proposes would not cover in any way. For example, if the sheriff sees the defender's witness list on the night before a case and recognises the name of someone who is a close friend, he would immediately recuse himself. However, a register of assets such as the petition proposes would be of no value in a situation like that.
John Wilson: In your opinion.
We have heard from the current Judicial Complaints Reviewer and the previous one, both of whom indicated that they would welcome a register of interests. The current Judicial Complaints Reviewer added that she would like the register to include information about hospitality that had been given or received. Are the Judicial Complaints Reviewers wrong in their opinion that there should be a register, and is the current reviewer wrong in her opinion that the register should include information about hospitality that has been given or received? A recent press article highlighted a situation with regard to sheriffs who were involved in overseas trips. One sheriff in particular has called for all his peers to be removed from their committee because he has accused them of leaking information about sheriffs' overseas trips. Surely if we had a register in which such matters were publicly declared, there would be less need for accusations to be made against sheriffs or judges in relation to their activities in the UK, Scotland or elsewhere in the world.
Lord Gill: The first Judicial Complaints Reviewer was very strongly of the opinion that there should be a register of assets for judicial office holders. As you will obviously infer, I disagreed entirely with her about that. As for the current reviewer, I think that she probably came here to speak about something rather different but was asked about the suggested register of assets and expressed her views. All I can say is that I do not agree with them.
However, I think that in your question you have perhaps rather changed the agenda of this meeting; my understanding is that what we are here to discuss the proposal in the petition that there be a register of judicial office holders' assets and property. If you are now suggesting that you want a register of gifts and hospitality, that is a separate issue that would have to be dealt with separately.
John Wilson: I was referring to comments by the current Judicial Complaints Reviewer, who came to the committee to discuss the petition that is before us this morning. In response to questions that she was asked, she indicated that she felt that there should be a register of interests and that she would extend it to include hospitality that had been given or received. I agree that that would widen the scope of the register that is proposed by the petition, but the issue was raised by the Judicial Complaints Reviewer in her evidence to the committee.
Lord Gill: I have read her evidence.
David Torrance (Kirkcaldy) (SNP): Good morning, Lord Gill. Can you expand on why you think that the current safeguards are sufficient?
Lord Gill: It is very obvious that, for a long time in Scotland, the judiciary has operated on a basis of integrity deriving from the judicial oath that they take on appointment. The terms of that oath are stark and plain; they are the lamp by which every judge is guided in his judicial path. In the modern era, we have added to that the code of judicial ethics, which is a carefully crafted document that went through a wide consultation process. That code gives every judicial office-holder clear guidance on all the ethical problems that are likely to occur.
The question is: does the Public Petitions Committee trust the judges of Scotland to do what they do with integrity and honour or does it feel that, among the judicial office-holders of Scotland, there are men and women who are liable to act wrongfully? It depends on how you approach the problem. It may be that, if your starting point is a belief that among the judges and sheriffs there are men and women who are capable of hearing cases in which they have a personal interest and therefore are capable of being guilty of misconduct contrary to their oath, I can see that there is an argument for having a register. However, as you can imagine, Mr Torrance, I take the opposite view.
After nearly 50 years in the legal profession, I believe more strongly than ever that the Scottish judiciary are dedicated and committed, honourable and loyal to their judicial oath and that they have integrity. If I had thought that, among the judicial office-holders in Scotland, there were men and women who did not have that standard of honour, I would not have wished to be their leader.
John Wilson: In your term of office as Lord President, how many judges or sheriffs were suspended or removed from the bench for inappropriate behaviour?
Lord Gill: None that I know of.
John Wilson: What about acting sheriff Watson?
Lord Gill: Sheriff Watson was a temporary sheriff—
John Wilson: Acting sheriff.
Lord Gill: Just a moment—may I finish? He was not, as you put it, removed from office. What happened was that a litigation arose in which he was involved and I, in the exercise of my discretion, suspended him from sitting as a temporary sheriff until the matter was resolved.
John Wilson: I go back to my original question, convener. How many sheriffs or judges were suspended or removed from the bench during your term of office as Lord President?
Lord Gill: As I told you, the answer is that I suspended temporary sheriff Watson and I did not suspend any other judicial office-holder. It was not in my power to remove them from office, because judicial office-holders can be removed from office only by a procedure that involves the First Minister and the Scottish Parliament.
The Convener: If there had been a register and that temporary sheriff had registered an interest, would that have helped at all or had any implications for your decision?
Lord Gill: No. You have made my point, convener. That would not have been caught in a register. By the way, we cannot make any judgments of fact about that case because it is still, as I understand it, under litigation. We do not know what the facts are.
Angus MacDonald (Falkirk East) (SNP): Good morning, Lord Gill and Mr Flinn. As we have heard, one of your main arguments is that judges have a different role from that of other public officials. Will you explain in more detail the way in which the role of a judge is different from that of other public officials and why that merits the judiciary being treated differently in respect of a register of financial interests?
Lord Gill: If someone is, let us say, a councillor in a local authority, and they are engaged in the business of the authority, they will be involved in making decisions that involve the spending of council money, the placing of contracts, the purchasing of services and so on. It is perfectly understandable that, when an individual councillor votes on whether a company should be given a contract, it should be publicly known what if any interest that councillor has. Judges fulfil an entirely different function: they administer the law, they resolve disputes between parties and, by their imaginative development of the law, they improve and extend the law, explaining it in their judgments. That is an entirely different constitutional function.
In a devolved Scotland, the ministers, the legislators such as you and the judges, as I once was, carry out their different functions in their own different ways. That is dependent on their doing so in a spirit of mutual confidence in which the three organs of the state carry out the functions in the knowledge that they have the trust of the others. That is why, in Scotland today, our devolved democracy is working so well.
The assumption underlying the petition raises a matter of extreme concern. The petition implies that there are judicial office-holders in this country who are unfit to hold that office. If the committee accedes to the principles behind the petition, that would be regrettable, because it would mean that the committee had evinced its own belief that there are judges and sheriffs who are not to be trusted. I invite you, as a committee, to demonstrate your confidence in Scotland's judiciary. If you were to do that, I am convinced that both you as legislators, and the judiciary, would be all the better for it.
Angus MacDonald: Thank you. It was important to get that fundamental view on the record.
What is your view of the fact that the United States of America has successfully introduced a register of judicial interests? Has the system in the States increased public confidence in the judiciary?
Lord Gill: I do not know that we would want to have a judiciary here that is like the one in the United States. It depends on your personal point of view. I do not give you my view, but I am sure that you can guess what it is.
Angus MacDonald: I will not pick up on that particular point.
Has there been any evidence on the impact that the US system has had on the independence of judges or the way in which the media treats judges in the USA?
Lord Gill: I would be very sorry to see a judiciary in which candidates ran for election and in which candidates' election campaigns were based on fundraising from companies and corporations that might be litigants in their courts. I would also be very sorry if the day ever came where, before appointment, judges had to come before a committee of this honourable legislature for confirmation and for examination of their political, ethical and social views.
Jackson Carlaw (West Scotland) (Con): Lord Gill, I am delighted that you are with us this morning. When the petition first came before us, in 2012, I thought that it was rather vexatious, but we went through our normal process and initiated inquiries, as is our wont. What surprised me, given that you have a record of giving evidence to other committees of the Parliament and given that there is nothing terribly controversial in the evidence that you have given us this morning in response to the petition, was that you felt it inappropriate to comment to the committee at that much earlier stage, before the petition started to gain attention and momentum in the media.
You met the then convener and deputy convener, but only privately—I presume, to say to them what you have said to us today. Unfortunately, that gave wind to those who felt that there was something slightly paternalistic in the suggested approach, which was along the lines of saying, "I am not terribly interested in discussing this. I have told you that I think it is largely a bunch of nonsense. Please accept that to be so and carry on," if I can put it like that. I am interested in knowing what your reluctance was. Also, what did you feel could be said only in private then that you feel able to say today?
Lord Gill: I do not know whether it was you, Mr Carlaw—I think that it may have been you—
Jackson Carlaw: I probably added a bit of colour.
Lord Gill: You said that I looked down upon the hoi polloi.
Jackson Carlaw: I freely admit to adding a bit of colour in order to compensate for the magisterial response that we received, Lord Gill.
Lord Gill: Your remark might have come as a surprise to people who know me. However, that is all water under the bridge and we cannot keep harping on about it forever. The main thing today is to discuss the petition, which is what I am here to do. You have asked the question and I have a jolly good answer for you. Here it comes.
In two detailed letters, I set out my reasons for being against the petition. I hope and I think that I set out those reasons with the greatest clarity. I had no further reasons to add; therefore, I was quite satisfied that I had placed before the committee all the help that I could give it.
I have appeared on numerous occasions before the Justice Committee in this very room, so it is not as though I have an aversion to appearing before committees. I am happy to be here today and I am enjoying this stimulating conversation. However, as I had given you all that I could give you, there was nothing to be gained by my coming here.
I also had to consider the office of the Lord President, which I then held, and my judgment was that it was not a situation in which, under the Scotland Act 1998, it was necessary that I should come here for examination before the committee. That was my view. I am aware that you take a different view and I hope that, in differing on that, we will not fall out.
Jackson Carlaw: I am sure that we will not.
Lord Gill: Thank you for that.
Jackson Carlaw: Obviously, you met the then convener and deputy convener privately to explore the very issues of the advice that you felt you had given us. I only suggest that your doing so created, beyond this committee, an impression that there was a reluctance to bear witness to the advice that had been given or to allow us to explore with you the contrary advice that we had received from the former chair of the JCR, which you have dismissed again this morning.
Lord Gill: No. I think that that is a highly overdramatised view of what I did. It seemed to me that, since there was concern among the committee, it was perfectly reasonable for me to meet the then convener and discuss his concerns. What came out of that was really quite helpful, because I was able to tell him things that he did not know. For example, I told him that, if he wanted to know what all my assets were, he could go to the Scottish courts website and find them. He did not know that. I also told him that I was perfectly happy to institute a recording system for recusals if that would help, and he said that he thought that that would be a good idea. I went back to my office and my staff duly implemented it.
Jackson Carlaw: Okay. I should say that I remain—
Lord Gill: Have you got any questions for me about the merits of the petition, Mr Carlaw?
Jackson Carlaw: I remain broadly sympathetic to the views that you have expressed. I simply say to you that it was unfortunate that we found ourselves in the position that we did. You spoke movingly—
Lord Gill: Mr Carlaw, this is water under the bridge now. I am here to talk about the petition.
Jackson Carlaw: That is why I am moving on.
Lord Gill: Well, please ask me some questions about the petition. That would be the most profitable use of time.
Jackson Carlaw: I will ask questions on the petition and on the remarks that you have made in opening and in your responses to questions. Forgive me, but allow me to frame my own questions rather than have them suggested to me.
Lord Gill: Please do.
Jackson Carlaw: You spoke movingly and with conviction about why you feel that the petition is inappropriate and unnecessary. The leaders or representatives of every profession that has ever been the subject of such a register probably said much the same about the character of the individuals with whom they kept company. That in itself is not an argument against a register.
You said that the register would put us out of step with the rest of the United Kingdom, which is something of a monkey see, monkey do argument. Scotland has led the way on a number of aspects of legislation, and the fact that other parts of the United Kingdom have chosen not to do something is not in itself an argument.
Despite the eloquent way in which you spoke about the character of the individuals who are involved, uncomfortably for us both, perhaps, do we not live in a more cynical age in which transparency and the aims of the petition have become part of commonplace life and something that many members of the public now expect of us irrespective of where we serve?
Lord Gill: You may be right. It may be that the public and perhaps even the legislature are in a more cynical frame of mind than in the past. That might be just an aspect of the modern world. However, I know of no example of a case that such a register would have prevented from occurring. As far as I can see, any problems that are likely to arise in the area are exactly the sort of problems that the petition would not address. I have mentioned the most common one, which is the case in which the judicial office-holder knows one of the parties or one of the witnesses. A register would not pick that up.
The petition also mentions the New Zealand situation. As the committee may know, when the proposal was put to the New Zealand Parliament in February, it was defeated by 104 votes to 16. If the committee does not have the documentation about that, I would be happy to make it available. I read it in preparation for this meeting. That proposal arose from a most unfortunate situation in which a judge in a case owed money to one of the lawyers. Obviously, it was deplorable that such a judge would sit in that case, but you will appreciate that that would not be caught by the proposed register. What it really comes down to is that a register would not meet what appear to be the concerns. On the contrary, there is no evidence base to support the proposal.
Jackson Carlaw: In essence, your argument, beyond all others, is that the objective as established in the petition by the petitioner would not necessarily satisfy the objective that he is potentially trying to seek.
Lord Gill: That is my view.
Jackson Carlaw: Finally, given that you have accepted that we may live in a more cynical age than either of us might wish, is there in your mind something that might arise in the foreseeable future, in the most general terms, that might give further public confidence? You have given us the illustrations of the oath and the process that currently exists. Do you think that those are properly understood by the public in relation to the confidence that they can have in the judiciary?
Lord Gill: Yes, I do. I feel very strongly that the people of Scotland have a judiciary whom they know and trust. That is one of the reasons why one would want to live in a country such as this. It is important that the public should know that the Scottish judiciary enjoys a reputation throughout the judicial world that is out of all proportion to the size of our small nation. The influence that it exerts in judicial thinking is enormous. The Scottish judiciary is admired, is respected and plays its part in the international world of judicial affairs. We should be very proud of that. It is one of Scotland's best assets. It would be a tribute to our judiciary if the committee were to acknowledge that by its decision in the present case.
Hanzala Malik (Glasgow) (Lab): Good morning, Lord Gill. I have to be honest with you: I am very impressed by what you have said to us this morning. I want to ask your opinion on something that no one has raised. If—and I use the word "if" guardedly—there was to be a register, do you think that it could put our judiciary at risk in relation to security and terrorism?
Lord Gill: I do not think so. I do not see that as a serious problem. As you will have gathered from my previous answers, I simply think that it would achieve nothing.
Hanzala Malik: I ask because I think that a register would introduce another layer of information—it perhaps would give more information than is currently available—despite the fact that it might not have a practical role. Would it be wise for us to have that information out there in the open?
Lord Gill: I really do not think so.
The Convener: Short of agreeing with the petition—I know that you are encouraging us not to do that—do you believe that an enhancement of the complaints system could address any concerns that people may have about the interests of a sheriff or a judge when they sit in a case?
Lord Gill: Given the number of cases that go through the Scottish courts in a year, the volume of complaints that come to the Lord President is remarkably small, and very few of those complaints are upheld. There is a very efficient system of investigation. It is carried out thoroughly and effectively, and I do not think that it is in any urgent need of improvement because it is working well. Of course, we have to remember that the role of the complaints reviewer is not to deal with the merits of complaints but to ensure that complaints are handled correctly and that the process is carried out in accordance with the regulations. That is a useful function, and it is very helpful to have a reviewer. However, on the merits of complaints, I think that you may be reassured by me that that aspect is being handled very well.
The Convener: In normal circumstances, who makes complaints? Are they made by defence lawyers or witnesses, for example?
Lord Gill: Very often, the complainer is the losing party in a litigation, which is perfectly understandable. There are very few official complaints, if I can put it that way. Complaints are mostly from members of the public, and we have a very effective system of dealing with them. As soon as they come in, they are immediately assigned to the disciplinary judge, who then reads the papers; if there is a reasonable basis for investigating them further, they are then investigated by an independent investigator. For example, a complaint against a sheriff would probably be carried out by a sheriff principal from another jurisdiction. The matter is gone into very thoroughly, and at the end of the day it comes before the Lord President with a recommendation, which he is free to accept or modify.
The Convener: I suppose the follow-up point is that if someone was to make a complaint, they must already have had a suspicion that something was untoward with regard to the sheriff who presided, in which case it would be irrelevant whether that information was on a register.
Lord Gill: You would be surprised how few of the complaints have any substance to them. When they do, in my experience it tends to be to do with the behaviour on the bench rather than any personal interest on the part of the judicial officeholder. Sometimes judicial office-holders get exacerbated on the bench—you would be surprised.
Angus MacDonald: Clearly, you would like us to take decisive action on the petition. However, is it your view that there would be some merit in the Scottish Law Commission examining the issue in more detail?
Lord Gill: That is not a matter for me. The Scottish Law Commission will draw up its programme of work, and that will then be approved by the Cabinet Secretary for Justice, who may make individual references to the commission on ad hoc topics. It may be that the cabinet secretary would wish to refer the petition to the commission, but that is a matter for him.
Angus MacDonald: You do not have a view on that.
Lord Gill: Not for the moment. Until someone can come up with a specific example of a case where the register would have made any difference, I will continue to take the view that it would achieve no purpose.
John Wilson: You referred earlier to the petition calling only for a register of pecuniary interests. However, the petition actually calls on the judiciary
"to submit their interests & hospitality received to a publicly available Register of Interests."
There are registers in place; registers have been instituted under you as Lord President, such as the public register of recusals and the Scottish Courts and Tribunals Service judicial members' shareholding register, which the petitioner kindly furnished us with for today's meeting. Surely the petition has served some purpose. Action has been taken to address some of the issues.
You said that you referred to the register of recusals when you met the convener and the deputy convener of the committee in private. Surely the debate that we have had about the petition has been useful: it has moved the petitioner's issues forward, it has moved the Parliament forward and it has moved the Lord President's office forward.
Lord Gill: I disagree with you emphatically, Mr Wilson. All that the register of recusals has done is to prove exactly the point that I made to the convener at the time: there has not been a single example of a recusal that would in any way be connected to the petition. From my point of view, the evidence has been useful in demonstrating that what I imagined was the case is the case.
The register of interests for members of Scottish courts was in existence long before the petition was lodged, so the petition was not the cause of it.
John Wilson: Thank you.
The Convener: That appears to conclude our questions. Do you want to add anything else following the discussion, Lord Gill?
Lord Gill: No. Thank you very much for inviting me, convener. I thank members for the cordial atmosphere in which the session has been conducted. I have sincerely tried to help the committee, and I hope that what I have said has been helpful. I strongly urge the committee to refuse the petition.
The Convener: I do not think that we will make a final decision on the petition this morning. Does the committee agree that we should draw up a paper to be discussed at a future meeting so that we can collate all the information, including the comments that Lord Gill and others have made, and make a final decision at a future meeting?
Members indicated agreement.
John Wilson: I am sorry, convener, but we indicated at a previous meeting that we would try to invite the new Lord President to give formal evidence to the committee when they had been appointed. I am not sure whether the committee is still of a mind to wait for the appointment of the new Lord President and invite them. The new Lord President might have a different opinion from that of the former Lord President in giving evidence before the committee.
The Convener: I am open to whether the committee wants to do that. I was not party to the previous conversation, so I do not know what members agreed.
Hanzala Malik: I am happy and feel that I am in a position to make a decision, so I do not need any more meetings on the matter—
Angus MacDonald: Given the situation that we found ourselves in with the previous Lord President, perhaps some written evidence from the new Lord President would suffice rather than our asking him or her to appear at the committee.
Jackson Carlaw: There is a distinction between the petition that we are considering and some of the more general issues that have arisen during our consideration of it. The evidence that we have heard this morning is quite compelling in relation to the decision that we will arrive at on the petition. What we might suggest by way of any future examination of the broader issues is separate. I think that I now have the evidence that I require in order to arrive at a determination on the petition.
The Convener: I see most members of the committee nodding at that. It has been suggested that we bring a paper to a future meeting and make a decision then, having collated all the information that we have gathered. I do not see any desire among members to seek any further information or to wait until we can get a response from the new Lord President. I do not think that there is any demand for that.
Angus MacDonald: My comments were based on John Wilson's suggestion that we ask the new Lord President to appear before us, which I do not think would be helpful. I agree with colleagues that I now have sufficient knowledge to make a balanced judgment.
The Convener: Okay. We will bring a paper to a future meeting and debate the information that we have so far collated. Is that agreed?
Members indicated agreement.
The Convener: I thank Lord Gill and Mr Flinn for attending this morning.
Lord Gill: Thank you, convener. I thank the members of the committee, too.
Meeting suspended.
Previous articles on the lack of transparency within Scotland’s judiciary, investigations on judicial interests 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
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