JUDGE JUDGES: Scotland’s top judge refuses to face MSPs on judiciary’s EIGHT YEAR battle against register of judges’ interests – Lord Carloway says he will not attend Holyrood to ‘rehearse the same arguments which have not apparently found favour’

Lord Carloway refused request to face MSPs. SCOTLAND’S top judge Lord Carloway – has refused a second request from Holyrood’s powerful Justice Committee to face questions on judges’ opposition to an EIGHT YEAR petition calling for the creation of a register of judicial interests - Petition PE1458: Register of Interests for members of Scotland's judiciary

In a letter to Margaret Mitchell MSP – Lord Carloway (real name Colin Sutherland) informed the Convener of the Justice Committee he would not attend Holyrood to “rehearse the same arguments which have not apparently found favour”.

The uncompromising – yet unconvincing letter from the top judge is a veiled reference to previous unconvincing arguments against judicial transparency put forward by both Lord Carloway and his predecessor - Lord Brian Gill – who both demanded an end to MSPs investigations of judges’ interests.

The letter from Scotland’s top judge to MSPs - dated 29 January 2020 but only published by Holyrood earlier this week – is loaded with contentions that judges can only judge judges – and ends with a previously used veiled threat to the Scottish Parliament over alleged constitutionality of elected politicians creating legislation to require judges to declare their interests.

Lord Carloway also rehearses previous arguments put forward to MSPs on sponsored studies by EU judicial quango groups – even though the UK left the European Union on 31 January 2020.

It should be noted both the Public Petitions Committee and Justice Committee have heard the same arguments put forward by the judiciary over the course of eight years, yet both Committees found judges’ arguments against transparency and judicial declarations to be unconvincing against the weight of cross party, media and public support for a judicial register.

And in November 2019, the Convener of the Justice Committee wrote to Lord Carloway informing the top judge MSPs were minded to support the petition as the judiciary had not put forward any convincing arguments against the creation of a register of judges’ interests p reported here: JUDGES MUST DECLARE: Holyrood Justice Committee back cross party supported proposal to require Scotland’s judges to declare all financial interests and other links in a publicly available register of judicial interests

The cross party backed judicial register petition calls for the creation of a publicly available register of judicial interests – containing information on all 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.

The Justice Committee’s note of support follows over SIX YEARS of investigations by the Scottish Parliament’s Public Petitions Committee – who also concluded a register of judges’ interests was workable and could be created – despite similar arguments put forward by Carloway’s predecessor Lord Brian Gill who warned MSPs they did not have the power to require judges to declare their interests.

The decision by the Public Petitions Committee to endorse the petition was 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

And, like Lord Carloway – Brian Gill refused two requests to face MSPs questions on the petition – only finally showing up at Holyrood in November 2015 after the top judge retired earlier that year.

The Justice Committee will consider Petition PE1458 at a meeting on Tuesday 10 March 2020.

Lord Carloway’s letter to Margaret Mitchell MSP Convener of the Justice Committee:

I thank you for your letter of 22 November 2019 in which you indicate that the Justice Committee is inclined to support the principle behind the petition of a judicial register of interests. I have, once again, considered the matter very carefully. As I mentioned in my letter of 23 August 2019, if substantive new issues had been identified then I would have been happy to address them. However, no new issues have been identified.

Over the course of 7 years, I and my predecessor have repeatedly explained our view that a register of judicial interests is constitutionally inappropriate, unnecessary, disproportionate, unsupported by objective evidence, and incapable of achieving its stated aim. On a practical level, it would have negative effects on judicial retention and recruitment at a time when attracting quality applicants for judicial office is, as I suspect you are already aware, extremely challenging. It would be cumbersome to operate. It would provide additional means for disgruntled litigants to target judges and their families. Elected office and judicial office are not comparable. The checks and balances applicable to each are different by conscious design. Judges and sheriffs are fully accountable for each and every decision which they take. Those decisions are taken in open forum and subject to appeal. At each stage the actions of the court are governed by clear and transparent legal rules. The nature of political decision-making is very different from that of legal decision-making. That is why the checks and balances are correspondingly different.

The Committee will be familiar with the Council of Europe Group of States Against Corruption (GRECO). The Committee undertakes regular independent investigations into anti-corruption mechanisms in member states. It concluded (at para 133), once again, in its Fourth Evaluation Round Report about our judiciary that there is no "element of corruption in relation to judges, nor is there evidence of judicial decisions being influenced in an inappropriate manner... What was said in the First Evaluation Round Report with respect to the absence of a system for formal registration of interests of judges is still valid. GRECO did not recommend the introduction of an asset declaration system at that time and the GET found no change of circumstance that require such a recommendation at this time". GRECO is an important independent source of evidence on how our legal system functions. In the absence of any objective suggestions of corrupt practices, and by that I mean from those without axes to grind, I would suggest that no additional controls, beyond those already in place, are desirable.

The Committee appears already to have reached at least a preliminary view on the matter. There would seem to be little value in wasting the Committee's time with a third Parliamentary appearance only to rehearse the same arguments which have not apparently found favour.

I have mentioned previously that the question of whether to have a register of interests for the judiciary is not something that can be considered in isolation. It forms part of a larger equation which bears on judicial recruitment, retention, reward, quality, independence and effectiveness. As part of ensuring that this equation continues to balance, the Committee may be interested to know that a judicial working group of the Judicial Council, comprising members drawn from each of the judicial ranks, has been working for some months on a project to refresh the Statement of Principles of Judicial Ethics. The Statement is a cornerstone in supporting judicial independence, impartiality and integrity. It builds on tire UN Bangalore Principles.

At its most recent meetings, the group has focussed on the extent to which judges may undertake extra judicial activities. In due course, the Judicial Council will be considering whether or not, among a range of other measures, a system of permissions for commercial activity has a place in any adjusted code of ethics. Regardless of the decisions which the group may eventually reach, the Committee can have confidence that they will have been arrived at after deep consideration of the likely effects of any change across the whole judicial system. That is the most effective means by which such questions can be explored and resolved.

I remain of the view that, from the constitutional perspective, the extent of any monitoring of judicial conduct, including judges' interests relative to the performance of their duties, should remain a matter for the Judiciary and not for Government or Parliament. I note that almost every country in Europe and the Commonwealth agrees with this analysis.

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 operated 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

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 consistently supported calls for a judicial interests register over multiple hearings – where MSPs have spoken out on Scottish judges involvement in the Gulf States, 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 – where MSPs backed the petition - 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 – where evidence in relation to Scottish judges swearing dual judicial oaths and working for Human Rights abusing Gulf States dictatorships - 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.