Yesterday, Lord Carloway (real name Colin Sutherland) appeared before members of Holyrood’s Public Petitions Committee, where in his evidence, the judge blasted transparency, court users, litigants the press, public, the internet and even social media - as reasons judges must be exempt from declaring their interests.
Carloway - who earns over £220,000 a year as Scotland’s ‘top judge’ - even declared to MSPs that creating a register of interests for judges would deter recruitment of ‘talented’ lawyers – reported in more detail by The National
The protests from Scotland’s current top judge are in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland's judiciary.
The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.
A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 - ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.
The short session with Lord Carloway held yesterday, lasted a mere thirty six minutes.
Carloway’s stuttering performance was brought to a swift end by the Convener after detailed lines of questions from Alex Neil MSP saw Scotland’s top judge bounce from subject to subject, unable to offer a single clear reason as to why judges should be treated any differently from others in public life.
The Scottish Sun newspaper reported in today’s edition Alex Neil MSP (SNP Airdrie and Shotts) slammed Lord Carloway’s “extremely unconvincing” argument. He added: “He put no rational case against.”
Lord Carloway’s appearance before MSPs was rated as “poor” by legal insiders, comparing the session to that of his predecessor Lord Brian Gill, who gave evidence to MSPs in November 2015 - after resigning earlier from the post of Lord President in May 2015.
Gill, who had waged a three year battle against the petition, refused to attend the Scottish Parliament on several occasions – a refusal resulting in heavy criticism in the press and from politicians who said Gill had insulted Holyrood.
Scottish Parliament’s Public Petitions Committee’s deliberations on Petition PE1458: Register of Interests for members of Scotland's judiciary.
The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.
A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 - ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.
In a statement issued to the media late yesterday, Moi Ali – Scotland’s first Judicial Complaints Reviewer who gave evidence to the Scottish Parliament in 2013, criticised the stance of the Lord President at today’s hearing.
Moi Ali said: “I hold judges in high esteem for the important work they do, but I regret to say that Lord Carloway did a great disservice to the judiciary in his evidence to the Petitions Committee. He appears to have a very low opinion of users of the Court Service, suggesting that people who do not get the result they want may act with resentful, malicious and hostile intent. This is insulting to the public at large.
“His suggestion that a register of interests would lead to retaliation by unsuccessful litigants in the form of online fraud is frankly ludicrous and deeply offensive. I personally handled complaints reviews by unsuccessful litigants when I was the independent Judicial Complaints Reviewer, without any kind of threat or malicious action – even where I did not find in favour of the complainant.”
“I published a register of interests when in that role, despite not being required to do so. Why? Because it’s a basic expectation that that's what public servants do in the twenty-first century.”
“The fact is that the judiciary do not wish to be open and transparent in this respect, and choose to present themselves as a special case. It seems to me that if a register is required to be completed by MPs, MSPs and public Board members, then it must also be required of the judiciary.”
“My opinion is not founded on a belief that judges are corrupt; rather, it comes from the view that transparency builds trust and confidence. As a society, we must be able to have complete confidence in our judiciary – and that starts with their openness and transparency.”
In a statement to the media, law blogger & petitioner Peter Cherbi said: “Transparency apparently stops at the doors of our courts and that’s it, Judges are to remain judges in their own cause and we shouldn’t have a register of interests until there is a scandal. Not on in 2017.”
Lord Carloway doesn’t seem to consider the fact these litigants and their legal representatives he holds in such distain - prop up his £220K a year job and our courts in exorbitant fees and hundreds of millions of pounds in publicly funded legal aid.
“And just exactly why does transparency inhibit the recruitment of judges? All other branches of public life have registers of interest and do just fine on recruitment. Lord Carloway is really struggling with this one.”
“Moi Ali was right all along. These people are the most powerful, and require the most transparency. Everyone gets the idea of transparency except the judiciary. Time now for a full register of judicial interests and for Parliament to act where the Lord President has failed.”
“Carloway’s arguments against a register are waffle – look at how the Sunday Times was treated in England over the Cruddas case where judges failed to declare interests in their links to political parties.”
“We should remember this is not just about protecting court users, a register is about protecting the public and the media who in many cases as we know, advance the cause of transparency and public interest where Governments, the Executive, public bodies and the courts all fail.”
Full report & video footage of Lord Carloway’s evidence to the Public Petitions Committee:
As the hearing began, Johann Lamont opened questions to Lord Carloway on arguments he put forward relating to “online fraud” as an inhibition to a register of judicial interests.
Carloway failed to provide any example in response to the questions on his own argument, and then claimed he was unaware of details of any other registers of interest.
The Lord President then turned on court litigants, claiming a register of judicial interests and any attempts to bring transparency to the judicial bench would help “paranoid” litigants take revenge on a judge after losing their cases.
Carloway – who has been a judge for 18 years, then went on to castigate financial declarations of interest, claiming if such a register existed he would not be able to hire “lawyers of excellence” for positions up to £200,000 a year judicial jobs.
The Lord President even complained about the level of judicial salaries and pensions during his evidence to MSPs as yet another reason and “disincentive to lawyers of experience and skill to become members of the judiciary”.
He said: "We have a relatively small pool of lawyers of excellence who are capable of taking on the job of being a member of our senior judiciary.
"We have particular difficulties with recruitment at the moment. If I were to say to senior members of the profession, 'By the way, if you wish to become a judge you will have to declare all your pecuniary interests and open them to public scrutiny', I have no doubt whatsoever that that would act as a powerful disincentive for lawyers of experience and skill becoming members of the judiciary.
"I can assure the committee, we need them more than they need us."
In response to questions from Angus MacDonald on declarations of judicial interests in the United States, Lord Carloway said he was not in a position to comment on the US judicial system as he did not know enough about it.
However, it recently emerged Carloway regularly visits judicial gatherings in North America at taxpayers expense and mingles with judicial groups at plush locations for ‘legal conferences’.
Angus MacDonald then challenged Lord Carloway on recusals, in relation to cases where judges have either concealed conflicts of interest or have refused to stand aside from a case.
Mr MacDonald quizzed the Lord President on omissions in the recusals register – to which Lord Carloway said he was not concerned about.
The Lord President then told MSPs there was only one omission he was aware of in the recusals register.
However in response to a recent DOI investigation into judicial recusals, a number of cases are now being studied by journalists which appear to have been omitted from the recusals register.
And in at least one case, it has been alleged court clerks actively discouraged a motion for recusal, and suspicions are, more cases may fall into this category.
In a question from Rhona McKay MSP (SNP) who asked Lord Carloway what the Law Society of Scotland’s view was on a register of interests.
Lord Carloway bluntly replied “I don’t know the answer to that”.
Maurice Corry MSP then asked Lord Carloway if he would provide further details to the register of recusals and options to make the recusals register more transparent.
Lord Carloway said it was not particularly required to apply further details to the current register of recusals, which is currently published by the Judicial Office with sparse detail.
Angus MacDonald then asked the top judge if he could be content to see clerical errors corrected in the register with a footnote if applied at a later date. Lord Carloway said yes.
Alex Neil MSP, who attended the Petitions Committee as a guest, then asked Lord Carloway if it should be left up to a judge to decide on an issue of principal if it should be left up to a judge to recuse themselves or should it be for the Lord President or the keeper of the rolls to insist upon if there is a conflict of interest.
Lord Caloway said he was happy with the system as it stood.
However Mr Neil pressed Lord Carloway on the point, saying the system was balanced against people who come to court for justice, particularly if they are under resourced or never find out about conflicts of interest in court.
Responding, Lord Carloway reverted to an obscure report prepared by a group of European judges which said there was no need for a register of judicial interests in the UK.
However, the judges and legal team who prepared the GRECO report referred to by Lord Carloway - are also against the introduction of registers of interests for members of the judiciary in the EU.
Carloway then insisted the Scottish judiciary was “not corrupt”, and said he would not even consider a register of interests until there was evidence of corruption.
The Lord President said: "Until such time as it's demonstrated that there is corruption within the Scottish judiciary, I'm entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary."
Alex Neil put further questions to Lord Carloway, comparing the existence of the register of interests for MSPs which exists at the Scottish Parliament to ensure transparency.
Mr Neil reminded the Lord President the existence of the register of interests for MSPs did not exist due to allegations of corruption, rather to ensure transparency.
Responding to a case quoted by Alex Neil in relation to a construction firm - Advance Construction Ltd – in which a Court of Session judge & Privy Councillor heard a case eight times which involved his own son - Lord Carloway said he was happy Lord Malcolm acted properly without recusing himself in the case.
Carloway claimed that Lord Malcolm had acted in accordance with the code of judicial ethics.
Carloway was then challenged by Alex Neil on whether the top judge had actually investigated details of the case – to which Carloway initially claimed he was not aware of any documents.
However, pressed on the matter, the judge admitted he had read documents from the individuals named by Mr Neil.
Lord Carloway said “As far as I am aware the documents were not addressed to me, but I could be wrong about that”
An earlier investigation by the media revealed Lord Malcolm (real name Colin Campbell QC) heard the case in question no less than eight times while his son – Ewen Campbell – worked for Levy & Mcrae – the Glasgow law firm now subject to multi million pound writs in connection with the £400million collapse of a Gibraltar based hedge fund - Heather Capital.
Ewen Campbell had been appointed to run the case by a judicial colleague of Lord Malcolm & Lord Carloway – Sheriff Peter Watson who was at the time a senior partner of Levy & Mcrae.
Sheriff Watson was since suspended from the judiciary by Lord Brian Gill, who as Lord President in 2015, suspended Watson to protect public confidence in the judiciary – after both Watson and Levy & Mcrae were named in a multi million pound writ relating to the loss of millions of pounds in the collapse of the Heather Capital hedge fund.
Responding to further points raised by Alex Neil, Lord Carloway hit out against suggestions judges should register what their relatives are doing and where they are working.
Carloway said “this was going way beyond I suspect what is expected of politicians in a register of interests”.
However, Alex Neil informed Lord Carloway that MSPs are already required to register what their close relatives do.
In response, Lord Carloway compared politicians to members of the judiciary, and claimed judges require a different type of independence as enjoyed by politicians.
The top judge said interests in the judiciary usually relate to social connections with people rather than pecuniary interests, which do not appear in the register of recusals.
However, as there are no requirements to declare pecuniary interests in the current recusals register, it is of particular note not one financial related recusal has appeared in the register of recusals, which covers 700 members of the judiciary, some of whom are earning up to £220,000 a year, and for many years.
In further points put to Lord Carloway, Mr Neil said that the perception of fairness is not present in the way matters are conducted in court.
In response, Carloway again referred back to the case mentioned by Mr Neil, saying he was happy with the way in which Lord Malcolm, had handled the court correctly.
Carloway claimed there was no active involvement whatsoever by Lord Malcolm’s son – Ewen Campbell – who is now an advocate.
However, Ewen Campbell’s name is listed on court papers from the outset of hearings in the Court of Session in front of his father, Lord Malcolm.
And, it has since emerged a written and signed statement by Ewen Campbell as a witness in the case mentioned by Alex Neil has been provided to journalists, along with a statement signed by suspended sheriff Peter Watson – a judicial colleague of Lord Carloway.
These developments and statements, which are to be published in a further investigation into judicial recusals, now calls into question Lord Carloway’s claims in his evidence to MSPs.
Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland's Judiciary.
