The Justice Committee published a letter from Margaret Mitchell MSP, Convener of Holyrood’s powerful Justice Committee to Scotland’s top judge Lord Carloway – in which Ms Mitchell states: “After this evidence session and a previous one, the Committee is minded to support the principle behind the petition of a judicial register of interests as it has yet to hear a convincing case against.”
The cross party backed judicial register petition 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.
Support from the Justice Committee to advance the judicial transparency proposal - comes after six years of investigation by the Scottish Parliament’s Public Petitions Committee – who unanimously backed the petition in the face of strong resistance from Scotland’s judiciary, and two years of work by the Justice Committee - who have now gone on the record with their support for a publicly available register requiring all judges in Scotland to declare their interests - in the same way all members of the Scottish Parliament declare their interests.
While in theory, all UK judges including Scotland’s judiciary have a duty to declare all relevant interests in cases they hear in court, a number of serious cases have come to light via media investigations – revealing judges are routinely failing to declare key interests – even when their own family members are before them in court.
In one serious example of a failure to declare interests, Lord Malcolm (real name Colin Campbell QC) heard a damages claim EIGHT TIMES while his own son – Ewen Campbell – represented the defenders in the same court.
The case involving Lord Malcolm generated significant interest as it was not just any ordinary case – it was an appeal linked to a multi million pound damages claim involving defenders represented by a then serving member of the judiciary – (now former Sheriff) Peter Watson - who was later suspended for a record three years plus over his links to a £28M writ involving the £400M Heather Capital Hedge Fund collapse - and then resigned in 2019.
The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest, is reprinted 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
A number of other cases where judges failed to recuse have also come to light, and cases where the Judicial Office failed to publish recusals – including at least one hearing involving Lord Bracadale (real name Alistair Campbell) - were drawn to the attention of the Public Petitions Committee during their long six year investigation of the proposal calling for a register of judicial interests.
An investigation revealing the Judicial Office altered the Register of Judicial Recusals - one year after Lord Bracadale recused from a case – and only after journalists questioned the Judicial Office on the omission, can be found here: RECUSALS UNLIMITED: Doubts over credibility of register of judges’ recusals - as Judicial Office admit court clerks failed to add details of senior judges recusals – then silently altered records a year later
The full letter from Margaret Mitchell, Convener of the Justice Committee – to Lord Carloway - was published by the Justice Committee as follows:
Petition 1458 - Proposal to establish a register of judicial interests
I write regarding the above Petition which the Justice Committee considered on 19 November. After this evidence session and a previous one, the Committee is minded to support the principle behind the petition of a judicial register of interests as it has yet to hear a convincing case against.
The Committee thanks you for your letter of 23 August 2019 on this subject. However in light of the above, members agreed it wanted to give you the opportunity to relate your views, in person, as to why a register of judicial interests should not be established.
I should be grateful, therefore, if you would indicate whether you, or a representative of the Judicial Office, would be willing to give oral evidence on the petition in the New Year. If so, in order to move forward. I would be grateful if your officials would contact the Justice clerks to discuss a mutually convenient date.
Finally it would be extremely helpful if you would provide further details on your views of what would be involved in establishing such a register and whether this would require primary legislation or could be achieved by some other means through the powers that you have as Lord President.
I look forward to your response. Best wishes,
Margaret Mitchell MSP Convener, Justice Committee
While Scotland’s judiciary have conducted an eight year resistance to proposals to make the judiciary as transparent as elected politicians, other jurisdictions such as Norway, the USA, and other countries have oeprated registers of judicial interests and requirements on judges to publish their financial reports without any issues.
In Norway, judges must complete a register of interests listing honorary posts, investments, memberships of political parties, companies, religious communities and charities among others.
The Norwegian model of judicial interest disclosure was hailed by the Public Petitions Committee as model for Scotland’s judges to follow.
More on Norway’s register of judges’ interests can be found here: NORWAY, M’LORD: Judicial interests register of Norway cited as example to follow for Holyrood MSPs six year investigation to create a register of judges’ interests in Scotland
After hearing evidence from Scotland’s first Judicial Complaints Reviewer (JCR) – Moi Ali in a hearing last November, the Justice Committee have also invited Lord Carloway to attend Holyrood to face further questions on his opposition to judicial transparency.
During that hearing in November, and in response to a question from MSP Shona Robinson on concerns raised by Lord Carloway of difficulties in hiring judges – Moi Ali said: “If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary.”
Video Footage of this exchange can be found here:
A full report on the Justice Committee evidence hearing with Moi Ali on 19 november 2019 can be found here: JUDICIAL REGISTER: Ex-Judicial Investigator responds to top judge’s claims a register of judges’ interests may affect judicial recruitment – “If a lawyer were put off by having to be open and transparent it does raise questions about their suitability to be members of the judiciary”
Earlier, in September 2013, and during the term of her office as Judicial Complaints Reviewer - Moi Ali gave evidence to the Scottish Parliament’s Public Petitions Committee, and supported calls for the creation of a register of judicial interests. The hearing is reported in more detail along with video footage of the 2013 evidence session here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.
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
TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL TRANSPARENCY PROBE:
Both of Scotland’s recent top judges failed to convince MSPs that a register of interests is not required for judges – even after both Lord Presidents attempted to press home the existence of judicial oaths and ethics – which are both written, and approved by – judges.
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”
Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in July 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
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.
