Amid media plaudits from Lord Hope – who currently serves with other Scottish judges in courts in the United Arab Emirates & Gulf States - where Human Rights abuses, domestic abuse & trafficking in migrant workers lead the order of business - Lord Reed - Robert John Reed (Baron Reed of Allermuir) – who has previously sat at the European Court of Human Rights and on a string of other appointments – now presides over the UK’s most powerful court.
Prior to his appointment to the Supreme Court in February 2012 - after the death of Lord Rodger, Lord Reed sat in the Outer House of the Court of Session, and became principal commercial judge in 2006.
Lord Reed was then appointed a Privy Councillor – a position enjoyed by other Court of Session judges such as Lord Malcolm (real name Colin Campbell QC) and joined the Inner House of the Court of Session where he sat from 2008 to 2012.
However, in September 2019 - when the UK Supreme Court upheld the prorogation case brought by MSP Joanna Cherry (and others) – documents obtained from the Scottish Government revealed Lord Reed sat on the same appointments panel which recommended Lord Carloway for the position of Lord President – Carloway (real name Colin Sutherland).
Lord Carloway is the same judge who upheld the Judicial Review case brought by the same MSP – Joanna Cherry (and others) in Scotland, against the prorogation of Parliament.
In the findings of three Scottish appeal court judges – headed by Lord Carloway himself, – Lord Carloway upheld the respondents contention that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.
In that ruling, Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogation Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.
Scrutiny of Papers obtained via Freedom of Information legislation and published in 2016 from the Scottish Government – revealed the same UKSC judge Lord Reed – also sat on the selection panel which recommended the appointment of Lord Carloway (Colin Sutherland) as Lord President in 2015.
The failure of Lord Reed to declare he sat on the appointments panel which recommended Lord Carloway for the top judicial job in Scotland – is one of two potential conflicts of interest for the Supreme Court judge which should have been aired and debated for recusal - prior to the UKSC hearing on the suspension of the Westminster Parliament.
How judges select Scotland’s judges - in secret Documents obtained from the Scottish Government revealed Lord Reed sat on the selection panel for the office of Lord President - along with Sir Muir Russell, Judge Lady Dorrian, and Deirdre Fulton – considered five candidates for the position of Scotland’s top judge.
This same panel – which included Lord Reed – went on to recommend Lord Carloway for the position as Lord President & Lord Justice General of the Court of Session.
Written exchanges between civil servants and the selection panel which are included in the released papers - reveal a short listing meeting was held on 1 September 2015.
The panel considered that two applicants Lord Carloway [Redacted] merited an interview on the basis of the quality of their applications.
Two emails from Lord Reed, dated 14th ^ 15 October 2015 – released by the Scottish Government in the FOI documents - give a minimal, and heavily redacted description of Lord Reed’s role in the panel’s work, which ultimately recommended Lord Carloway for the position of Scotland’s top judge.
In one email, Lord Reed states: “This strikes me as an excellent report. I have made a few minor suggestions as shown on the attached version. Most of the suggestions are trivial, [redacted]”
In a second email Lord Reed writes “I am content with the amended report. I agree, in particular, with the points which were made by Leeona. The amended version beems to me to present an accurate account, and a fair and balanced assessment [redacted]”
A further potential interest not declared, brought ot the attention of journalists by a legal source, identifies Lord Reed’s work together with Lord Carloway – on a ‘compatibility issues review’ to consider if the High Court of Justiciary in Scotland would still have to give permission for appeals in criminal cases to go forward to the UK Supreme Court.
The review group was itself established by Lord Carloway, with others appointed to the group being Lord Reed (Deputy President of the UKSC), and others - Lady Dorrian (Lord Justice Clerk); David Harvie (Crown Agent); Roddy Dunlop QC (Treasurer of the Faculty of Advocates); and John Scott QC (President of the Society of Solicitor Advocates).
The review concluded - "Appeals to the Supreme Court of the United Kingdom (UKSC) should not require certification by the High Court of Justiciary that the issue raises a point of law of general public importance, a review chaired by the Lord Justice General has concluded."
Although – it should be pointed out – coincidentally, the review on appeals to the UKSC – limited to appeals in criminal cases - came too late to help in several serious cases of judicial conflicts of interest in Scotland – particularly on a well known case where Court of Session judge & Privy Councillor - Lord Malcolm (Colin Campell QC) heard a case up to eight times - while failing to declare his own son represented the defenders in multi million pound damages action.
A report on the Lord Malcolm conflict of interest case can be found here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times - where his son acted as solicitor for the defenders.
The two potential conflicts of interest, not declared by Lord Reed in relation to what was a law changing UKSC ruling of significant impact – again highlight the need for a publicly available Register of judges’ interests - to ensure members of the judiciary do not forget to disclose interests which may have a bearing on cases before them.
The issue also brings into question again, the self imposed secrecy on judicial interests by the judges of the UK Supreme Court and wider UK Judiciary – who have resisted calls to become more transparent and declare their interests in the same way all public servants and elected politicians are required to declare in publicly available registers of interest.
The current stance of UK Supreme Court judges on transparency in relation to declarations of interest, is a point blank refusal by the judiciary to comply with the public expectation of transparency.
The UK Supreme Court’s website states the following in relation to judicial expenses and interests:
Justices' interests and expenses
Background
Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.
On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.
Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.
Current position
Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.
In addition all the Justices have taken the Judicial Oath - and they all took it again on 1 October 2009 - which obliges them to "do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will"; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case - whether a substantive hearing, or an application for permission to appeal.
In relation to the UK Supreme Court’s stance on declarations of interests, and declarations of conflicts of interest, Diary of Injustice reported on the issue in detail during 2017, here: SUPREME SECRETS: UK Supreme Court refuses to publish recusal data - Court rejects release of info on UKSC justices' conflicts of interest in response to Freedom of Information recusals probe on top UK court
During the probe of UKSC recusals and failure to declare interests, a common thread of dishonesty was noted in court staff’s handling of a Freedom of Information request from Scotland – which was only answered after coverage of the issue in The National newspaper, which prompted the Information Commissioner’s Office to order the court to respond to the request.
Lord Reed’s limited biography on the UK Supreme Court website (reprinted below) does not feature either of the issues identified linking the judge to Lord Carloway’s appointment as Lord President nor any mention of review & other work undertaken with Lord Carloway – including the UK Supreme Court sitting in Edinburgh, which included Lord Carloway as a sitting judge on the UKSC panel.
The announcement by 10 Downing Street of Lord Reed’s appointment as President of the UK Supreme Court in July 2019 read as follows:
The Rt Hon Lord Reed will succeed Baroness Hale of Richmond as President of the Supreme Court of the United Kingdom, alongside three additional appointments as Justices.
The Queen has been pleased to confer a peerage of the United Kingdom for Life on Lord Reed upon his appointment as the President of the Supreme Court in recognition of the contribution that he has made to law and justice reform.
Lord Reed will take up the position of President on 11 January 2020. Lord Justice Hamblen, Lord Justice Leggatt and Professor Andrew Burrows will join the Supreme Court as justices on 13 January, 21 April and 2 June 2020 respectively.Her Majesty The Queen made the appointments on the advice of the Prime Minister and Lord Chancellor, following the recommendations of independent selection commissions.
Lord Reed will replace Lady Hale who retires on 10 January 2020 after serving as President of the Supreme Court since September 2017.
LORD REED UKSC BIOGRAPHY:
Lord Reed was appointed as a Justice of the Supreme Court in February 2012 and has served as Deputy President since June 2018. Prior to his appointment to the Supreme Court he served as a judge in Scotland, sitting from 1998 to 2008 in the Outer House of the Court of Session, where he was the Principal Commercial and Companies Judge, and from 2008 to 2012 in the Inner House.
He was educated at the Universities of Edinburgh and Oxford, and qualified as an advocate in Scotland and as a barrister in England and Wales. He practised at the Scottish Bar in a wide range of civil cases and also prosecuted serious crime.
As well as sitting on the Supreme Court and the Judicial Committee of the Privy Council, he is a member of the panel of ad hoc judges of the European Court of Human Rights, and a Non-Permanent Judge of the Hong Kong Court of Final Appeal. He is also the High Steward of Oxford University.
IMPORTANT NOTE: Readers should note this article does not take sides in the brexit debate. This article is a reporting of a failure by a UK Supreme Court judge to declare or discuss relevant interests and a potential failure to recuse - by a senior judge who is the new President of the UK Supreme Court.
17 comments:
As you rightly say this is just one more example of why a register of judicial interests has long been required.
Incidentally, who gave the Supreme Court Judges permission to stop completing just such a register several years ago?
Reed gives Carloway the thumbs up to be top judge in Scotland and both of them interfere in parliament and brexit completely unacceptable he is now head of the supreme court and look who put him in the job Theresa May in her last days as PM!
@ 17 January 2020 at 13:32
The judiciary and legal vested interests saw to it there was no requirement for a register of judges interests in the Supreme Court - and this is the position they maintain to this day.
@ 17 January 2020 at 14:52
Yes, that is what happened.
In relation to an unpublished comment - the information re Lord Reed's role in the appointment of Lord Carloway was revealed in documents obtained from the Scottish Government - the documents are in the article and can be freely downloaded via the links within the article.
Very interesting Peter you hit the nail right on the head here
and dont forget the Supreme Court was created by the Labour Party and Tony Blair who led us into war and war and war with dodgy dossiers and a trail of accidentally dead weapons inspectors so no surprise they edited out any need for creepy judges giving each other a job to register their interests
Carry on the good fight mate you are a national treasure
I read your notice at the end of the post about the Brexit debate however I want to say the sheer arrogance of Hale and all the snooty judges know best and looking down on us attitude made me vote for the Conservatives to get us out of the eu
and judges should stay out of politics they are not elected they give themselves jobs as you correctly said on twitter and it is high time judges are put through the same questions in public as they do in other countries because all they do right now is hold up the courts and make money for their relatives and partners in the legal profession
WELL DONE!
Finally someone tells the truth about all that prorogation bullshit and the bbc wetting themselves over judges who say one thing on the news then sod off and leave the rest of us up you know where without a paddle
This was nothing short of judges and their ilk trying to block the result of a vote on the referendum to leave the EU and everyone can argue about it as much as they want but the fact is the remainers lost and if this had been a politician making his pal a top politician and ruling the same way then everyone would be calling him a crook and to resign
I get the rest of what you are saying and yes I agree the judge should have stated his links and stood down from the case but just as the other comments say these judges had it their way for too long and they are immune from the law itself and twist the law when it suits their purpose as happened here and will happen again if they are not put in their place
There is another angle to this you may have missed as in Lord Carloway should also have declared a link with Lord Reed before the Supreme court considered it
And dont forget Sturgeon and the remainiac mob criticised and howled at Boris for calling into question the impartiality of the judges WHICH YOUR DOCUMENTS from the SCOTTISH GOVT have now proved the judges were NOT IMPARTIAL!
@ 17 January 2020 at 22:57
Think of it this way - the judiciary have one of the most powerful lobbying forces in existence - the legal profession - and they use it to further their own interests as has been demonstrated at both Westminster and Holyrood.
@ 18 January 2020 at 10:48
Yes, a valid point, Carloway did not disclose any link - and although the UKSC case came after the Court of Session, a published register of judicial interests would have highlighted the links between both judges and raised questions for Lord Reed rather than both judges and whoever else knew keeping it to themselves.
Additionally, thanks for reminding me about something of interest during the name calling between Scots judges & Westminster.
This should receive wider publicity however as you published the documents along with your article most of the so-called media wont be interested as they cannot claim the brownie points for themselves.Too bad for them.
Seen this? British judges meddling in Poland against their judicial reforms
https://www.legalcheek.com/2020/01/uk-judges-snub-march-protesting-polish-rule-of-law-crisis-but-offer-statement-of-support/
UK judges snub march protesting Polish rule of law crisis — but offer statement of support
By CJ McKinney on Jan 10 2020 9:01am
Most other EU countries will be represented by their judges
British judges will not attend a protest organised by the Polish judges’ association to highlight the deepening rule of law crisis in that country.
Judges representing most EU countries are converging on Warsaw tomorrow for a silent march in full judicial regalia, but their UK counterparts are apparently washing their hair that day.
The Irish Supreme Court is sending a justice to march in full robes as a show of solidarity, while there will also be judges from Austria, Germany, Portugal, Denmark, France, Croatia, Greece, Spain, Hungary, Italy, Norway, the Netherlands, Czech Republic, Latvia, Bulgaria, Romania, Estonia, Slovenia and Turkey in attendance.
The Polish judges’ association, Iustitia, told Legal Cheek that it had sent an invitation to the UK Supreme Court, but didn’t get a response. A spokesperson for the Supreme Court confirmed that Lady Hale had received an invitation but was unable to attend.
The Judicial Office of England and Wales, which was not approached directly, said in a statement that “the independence of the judiciary is central to the rule of law”.
Iustitia says that “for the last couple of years in Poland the government and the legislature have systematically attempted to limit the independence of courts and the independence of judges”. The government claims that its reforms are to tackle corruption and increase efficiency, but critics say it’s more about packing the courts with compliant jurists.
In June 2019, the EU court found that a law lowering the retirement age of Polish Supreme Court judges was in breach of EU rules. In November, it ruled against a separate attempt to selectively force out judges in the lower courts.
The European Commission wrote to the Polish government just before Christmas to warn against “further deterioration of the situation of the rule of law in Poland”. The ruling Law and Justice party is nevertheless pressing ahead with a law that would punish judges for “political activity” and questioning the legitimacy of pro-government appointees to the bench.
The legislation is widely seen as an attempt to muzzle the judiciary, which has taken the lead in highlighting the government’s changes to the legal system.
Tomorrow’s protest march will see European lawyers and judges “walk together in silence in Warsaw… dressed in gowns/robes that are a symbol of our service to the law and societies of Europe”.
A spokesperson for the Judicial Office said: “There will not be a judge from England and Wales attending the march this coming Saturday. The England and Wales judiciary’s position is nonetheless clear and well known on the international stage: it is that the independence of the judiciary is central to the rule of law, underpinning the stability of society and effective functioning of democracy and the economy.”
They continued:
“Thus, the England and Wales judiciary actively supports and promotes judicial independence in both bilateral and multilateral discussions, including in the European Network for the Councils of the Judiciary (ENCJ) and the European Association of Judges (EAJ), as well as in the wider International Association of Judges (IAJ). These are organisations which have each been monitoring the situation in Poland over the past few years and made clear their opposition to any infringement of the judicial independence principle in that country.”
@ 18 January 2020 at 16:21
Just for the record - there are a few good journos at decent media orgs who are able to write law-related or any other articles without the ego trip, fawning to politicians or claiming brownie points.
If anyone has a story to tell or issue with the law or any other matter, DOJ will ensure contacts are made so anyone with information, those suffering from injustice, those with valid cases, and those without a voice can be heard.
@ 19 January 2020 at 01:00
Yes, been following the issue of reforming the judiciary in Poland - unfortunately the coverage of the proposals is laden with legal industry bias (although your link to the Legal Cheek report is good as they do feature a more wider view rather than some of the narrower interest lawyer-sponsored website news waffle merchants)
Would have to study the issue further, however it is of note how all the judiciaries who are opposed to the Poland reforms are also bitterly resisting any attempts to require judges to declare their interests and publish their recusals.
The Judiciary of Scotland also issued a statement in support of Polish judges against the Government reforms - however no reports so far if any of our Scottish judiciary showed up on the picket lines while claiming public cash for flying in to the protests or attending any EU lobby groups.
Another issue of interest in relation to the Poland reforms - according to information received, there are some EU countries where judges are apparently selected and appointed by the Minister for Justice ... yet the EU is not saying anything about that.
Also worth noting the role of the GRECO report, a regular written inquest of waffle on how judges across the EU are literally so great the sun shines from their gowns - in attempts by Lord Gill and recently Lord Carloway - to badger, bully and intimidate the Scottish Parliament into dropping the eight year petition for a Register of Judicial Interests in Scotland.
This is the top judge on the supreme court and he cant be bothered to declare all this links to the other brexit cretin? Too much to hide in the judiciary and not fit to judge us when they are so afraid of being found out themselves
A refreshing write up compared to all the fawning rubbish of his appointment to the post of UKSC President written by the legal brigade blogs and lawyer fanboys in the hopes of getting a job and leg up in the profession.
Incidentally nice find with those ScottishGov documents naming Reed and linking him back to Carloway getting the top job in Scotland.
What level of education and experience does it take to be a Lord President?
From what I read online Carloway is a dab hand at misdirecting juries and supporting every little gripe and grimace from the ScottishGov.
Not very judicial!
I understand what you write about and feel you are doing a lot of good.
I just want to say thank you for having the courage to write about the anti Brexit judges AND publishing the material.
BTW I read your blog all last night and today.
YOU ARE FANTASTIC!!
Your blog is very interesting and well thought out.
I understand if you don't wish to answer my question but do you have a view on Brexit you care to share with your readers?
And what improvements to the Supreme Court post Brexit would you propose in light of these conflicts of interest you have written of.
Thanks in advance.
MT
@ 2 February 2020 at 13:54
Brexit is done, now the country has to live and work with it.
On improvements to the UK Supreme Court - A fully published, updated and independently (not judges friends or lawyers) scrutinised Register of Judges Interests and a Register of Recusals - like what we already have in Scotland.
Perhaps also as the UK Supreme Court did politics after all (in spite of judges claiming not to do politics) thought should be given to returning the same and improved levels of transparency which existed during the era of Law Lords (minus the 'forgetfulness' of Lord Hoffmann which brought discredit to the Law Lords and wider judiciary in terms of failing to declare conflicts of interest)
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