EVIDENCE, M’LORD: Scotland's top judge complains Holyrood judicial transparency probe prevents him recruiting judges - refuses Justice Committee invitation to give evidence in cross-party backed Eight year register of judges' interests investigation

Lord Carloway refused to meet MSPs. SCOTLAND'S top judge - Lord Carloway - has refused to appear before the Scottish Parliament's Justice Committee to give evidence on proposals to create a register of judges' interests contained in a cross party backed petition - Petition PE1458: Register of Interests for members of Scotland's judiciary

Papers published late yesterday by the Scottish Parliament for next Tuesday's 19 November 2019 meeting to discuss the petition, state the following: "The Committee also invited the Lord President of the Court of Session, Rt Hon Lord Carloway to give oral evidence on the petition. Lord Carloway declined the invitation, setting out his reasons in a letter to the Committee on 23 August 2019."

Lord Carloway's letter to Margaret Mitchell MSP - Convener of the Justice Committee - dated 23 August 2019 – only published late this week, states "There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee's valuable time."

Lord Carloway – real name Colin John Maclean Sutherland – who earns over £220K a year - also complains in the letter to the Justice Committee - that raising the issue of judicial transparency & accountability right now is hampering his ability to recruit judges for well salaried judicial jobs which come with perks, international travel, speaking events, hospitality and gold plated pensions.

Carloway ended his letter to Margaret Mitchell with a barbed comment against the Committee’s proceedings: “We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”

However, documents obtained via Freedom of Information legislation - SCTS Board members shareholdings - and from the Scottish Courts & Tribunals Service (SCTS) Annual Report - SCTS Board register of interests - reveal Lord Carloway and other members of the judiciary are already required to declare some interests in the SCTS Board which runs Scotland’s courts – reported in further detail here: FACULTY LORD: 'Abbotsford Art & Faculty of Advocates trustee' declaration of globetrotting £223K a year anti-transparency top judge Lord Carloway, with 20 years on the judicial bench – calls into question scrutiny of Court quango interests register

While Lord Carloway will not be present at next Tuesday’s evidence session, Justice Committee MSPs will take further evidence from Scotland’s first Judicial Complaints Reviewer– Moi Ali – who has consistently backed calls for the creation of a register of judges’ interests for all members of Scotland’s judiciary.

Lord Carloway's refusal to attend the Justice Committee marks the third refusal of a sitting Lord President to give evidence on Petition PE1458: Register of Interests for members of Scotland's judiciary – which 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.

Previous refusals to give evidence on the judicial transparency proposal - saw Lord Carloway's predecessor – Lord Brian Gill - twice refuse invitations to give evidence to the Public Petitions Committee,

Only upon retiring from the office of Lord President in May 2015, did Brian Gill later accept an invitation to appear before MSPs in November 2015, during which Brian Gill's angry responses to questions from Public Petitions Committee MSPs ended up being dubbed "passive aggression" by the then Committee Convener – Michael McMahon.

Lord Carloway's letter to Margaret Mitchell MSP, Convener of the Justice Committee, in full:

I refer to your invitation of 25 June to give evidence to the Committee in relation to the proposal for a judicial register of interests. This is a matter that has been the subject of parliamentary consideration for number of years, with the petition being lodged in 2012. Since then there have been a number of exchanges between the Petitions Committee and both my predecessor, Lord Gill, and myself. Both Lord Gill and I have given oral evidence to the Petitions Committee on this matter. For your convenience, I attach copies of the letters that Lord Gill and I have sent to the Petitions Committee, and also the transcripts of our oral evidence.

I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee's valuable time.

If, however, after consideration of everything that has gone before, it emerges that there are new substantive issues, I would be happy to address them. I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.

This is not the first time Lord Carloway has declined to attend the Scottish Parliament’s Justice Committee to give evidence.

In 2016, Lord Carloway was accused of stifling a Justice Committee inquiry into the Lord Advocate and Crown Office and Procurator Fiscal Service by refusing an invitation to give evidence to MSPs.

The Herald newspaper reported Lord President, Lord Carloway, wrote to every level of the judiciary telling them he has refused to give evidence to the Justice Committee’s explosive probe into the Crown Office and Procurator Fiscal Service (COPFS) – with a clear hint the Lord President’s letter was to discourage others from attending the Justice Committee’s investigation of Scotland’s prosecution service.

He said the Scottish Courts service as an institution should give evidence to the committee, rather than individual members of the judiciary, even retired ones.

After the intervention, the SJA pulled out of its scheduled appearance at today’s committee.

The behind-the-scenes activity is understood to have troubled the committee’s convener, Conservative MSP Margaret Mitchell, who at the weekend told a meeting of JPs she would be concerned if there was a perception that freedom of speech was being restricted.

Opposition parties are also privately uneasy about a possible 'chilling effect'.

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

JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests

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

Evidence of Lord Gill before the Scottish Parliament 10 November 2015

Later, in June 2017 - Lord Carloway (real name Colin John MacLean Sutherland) did accept an invitation to give evidence at the Public Petitions Committee.

However, Carloway's position relied on attacking the media, court users, and a demand that judges essentially be exempt from the same levels of transparency applied to all other public officials.

The judge's appearance at the Public Petitions Committee was widely criticised, after Lord Carloway withered during detailed questions by Alex Neil MSP on serious issues of senior judges failing to declare significant conflicts of interest.

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

Lord Carloway evidence on Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017

In May 2018, the Public Petitions Committee rejected Lord Carloway's claims of an "unworkable" register, with MSPs ultimately backing the petition after a six year investigation and passing the petition to the Justice Committee for further action in May 2018, with an obvious expectation of progress – reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

HOLYROOD’S EIGHT YEAR JUDICIAL INTERESTS PROBE:

The judicial register petition - first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

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

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

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

The Scottish Parliament’s Justice Committee has backed calls for further work on the judicial interests register during at least THREE further Holyrood hearings, including the latest hearing from June 2019, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women's rights

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

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 can be found here: JUDICIAL REGISTER - MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

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.