JUDICIAL REGISTER: Holyrood Justice Committee to continue work on register of judges’ interests – MSPs to seek evidence from constitutional experts & report on conflicts of interest of key stakeholders in the justice system

MSPs to continue work on judicial register. THE Scottish Parliament’s Justice Committee will continue work on a cross-party backed petition calling for the creation of a register of interests for all Scottish judges: Petition PE1458: Register of Interests for members of Scotland's judiciary.

On Tuesday, members of the Justice Committee voiced their support for the plan to create a judges’ register of interests – despite intense opposition from Scotland’s top judge Lord Carloway – who refused to face questions from MSPs on judges’ interests .

Justice Committee members also decided to seek evidence from constitutional and academic witnesses – and briefings on the extent of conflicts of interest relating to key stakeholders in the Scottish justice system.

During the hearing, John Finnie MSP said: “The debate seems to be polarised. The petition has been open for a considerable number of years, and an issue remains. The public would expect some measure of accountability.”

“I note the comments about intrusion into the independence of the judiciary, and I wonder if there is any opportunity to investigate that further as a way forward. I am conscious that the petition has been around for a long time.”

James Kelly MSP said: “Over the period for which the committee has been examining the issue, I have become convinced by the case for a register of interests for the judiciary.”

“I note the responses from the cabinet secretary and Lord Carloway; there is clearly a bit of a stand-off here. Members’ suggestions of taking additional evidence to take the issue forward are sensible. We should not park the issue; it is important and we should continue to press it.”

Rona Mackay MSP said: “It is a very important issue, and it will not just disappear. As a committee, we should investigate it further and take some wider evidence to inform our views. I would be in favour of doing that at this stage. Albeit that we have—as John Finnie says—reached an impasse, it is incumbent on us to take a wider look.”

The move by the Justice Committee comes amid strong and continued opposition to the judicial transparency proposal from Scotland’s top judge – Lord Carloway, and Justice Secretary Humza Yousaf who both oppose any moves to require judges to disclose their interests in the same way others in branches of government, boards and all 129 MSPs disclose and register their interests.

Earlier this week, MSPs were provided with evidence from a senior Justice of the Peace that the official Register of Judicial Recusals – created by former Lord President Lord Brian Gill – was an incomplete record of conflicts of interest in Scotland’s courts.

Writing in a letter to the Justice Committee Convener, Justice of the Peace Dennis Barr said: “We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.”

The startling admission from Mr Barr - that judges were told by Scottish Courts and Tribunals Service (SCTS) staff - that any cases where Justices of the Peace stood down from a court case due to conflict of interest - would NOT be recorded - completely undermines assurances to MSPs from retired top judge Brian Gill, and current Lord President Lord Carloway – that the recusals register was an accurate register of Scottish judges standing aside from cases due to conflicts of interest.

Mr Barr’s evidence to the Justice Committee was reported in further detail here: INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals - Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings - would NOT be recorded in official register of judicial recusals

Continued opposition from the Scottish Government to the judicial transparency proposal – in the form of a letter from Justice Secretary Humza Yousaf to the Justice Committee, is reported in further detail here: NO, MINISTER: Justice Secretary claims Holyrood transparency legislation for register of judges’ interests - would undermine top judge who refused to meet Justice Committee on EIGHT YEAR judicial register petition

The Justice Secretary claimed that adding the requirement of judges to declare their interests could undermine Scotland’s top judge and intrude on the judiciary’s independence – similar arguments which have been constantly put forward by the Scottish Government & judiciary to the Public Petitions Committee – who investigated the petition for over six years and backed the plan to create the judicial register.

Further reporting on the register of judges’ interests petition and conflicts of interest of Scottish judges can be found on STV News here: Judging for ourselves if conflict of interest in courts and here: Scots judges facing pressure to declare their interests

The cross party backed judicial register petition filed at the Scottish Parliament in 2012 – 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.

Minutes of the meeting of Tuesday’s Justice Committee reveal the following decision:

Public petition PE1458: The Committee considered various pieces of correspondence received in relation to its ongoing consideration of the petition. The Committee agreed to keep the petition open and to seek further oral evidence in due course, in round-table formal, from constitutional and academic witnesses.

The Committee also agreed to seek further written briefings from the Scottish Parliament Information Centre (SPICe) in relation to other potential conflicts of interests relating to key stakeholders in the Scottish judicial system. The Committee will consider the scheduling of this work as part of its work programming up to spring 2021.

Video footage of Tuesday’s hearing can be viewed here:

Register of Judges Interests Petition PE1458 Justice Committee 10 March 2020

Judiciary (Register of Interests) (PE1458)

Margaret Mitchell (Central Scotland) (Conservative) Convener:  Agenda item 7 is consideration of petition PE1458, which is a proposal to establish a register of judicial interests. I refer members to paper 4, which is a note by the clerk. Do members have any questions or comments?

John Finnie (Highlands and Islands) (Green): We have had some very interesting contributions from the Cabinet Secretary for Justice and from various representatives of the judiciary, as well as comments on each of those from the petitioner.

The debate seems to be polarised. The petition has been open for a considerable number of years, and an issue remains. The public would expect some measure of accountability. I note the comments about intrusion into the independence of the judiciary, and I wonder if there is any opportunity to investigate that further as a way forward. I am conscious that the petition has been around for a long time.

I am supportive of the principle, and I note everything that has been said. However, we seem to have hit an impasse. I am keen to hear the views of different people—constitutional lawyers, for example.

Liam McArthur (Orkney Islands) (LD): I agree with John Finnie. Intuitively, I am supportive of the idea of a register. However, I do not underestimate some of the concerns that have been raised by the cabinet secretary and representatives of the judiciary—particularly on the independence of the judiciary.

The debate is rather polarised, and it is difficult to see where compromise might be possible. However, I wonder whether we might proactively elicit views from academics in the area, with a view to testing some of the arguments that they made to us in their helpful evidence.

Rona Mackay (Strathkelvin and Bearsden) (SNP): It is a very important issue, and it will not just disappear. As a committee, we should investigate it further and take some wider evidence to inform our views. I would be in favour of doing that at this stage. Albeit that we have—as John Finnie says—reached an impasse, it is incumbent on us to take a wider look.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP): It is clearly an important issue, which merits our having a conversation or a discussion about it in the committee.

On principle, as the petition has been in the system for eight years, we should take evidence with a view to bringing the matter to a conclusion. It is not fair to have petitions in the system for that length of time without bringing them to some kind of conclusion. However, I would be happy to hear evidence on it.

James Kelly (Glasgow) (Lab): Over the period for which the committee has been examining the issue, I have become convinced by the case for a register of interests for the judiciary. I note the responses from the cabinet secretary and Lord Carloway; there is clearly a bit of a stand-off here. Members’ suggestions of taking additional evidence to take the issue forward are sensible. We should not park the issue; it is important and we should continue to press it.

The Convener: I should note that there is a petition that we have been dealing with for in excess of eight years—the Megrahi case petition. However, as members have said, it is not an ideal situation. Given the impasse and the diametrically opposed views, does the committee wish to seek further information on the record in a formal meeting with constitutional lawyers and others, in an effort to move forward and with a view to looking at the pros and cons of the petition? We could then take a formal decision on it. We could also ask the Scottish Parliament information centre and the clerks for a note on the wider issues, perhaps even taking into account any conflict-of-interest issues that might have a bearing on how court decisions are taken.

Liam McArthur: I agree with that. Such an evidence session might be better using a round-table format, rather than having a more traditional evidence session. Due to the fact that the cabinet secretary and, previously, the petitioner referred to the situation in New Zealand, which has now taken a different course, it would certainly be useful in the information that is to be provided by SPICe to have an understanding of the thought process that the New Zealand Parliament went through to arrive at the decision that it reached in relation to the same issue.

The Convener: Are we all agreed that that is the way forward?

Members indicated agreement.

The National reported on developments at the Justice Committee here:

 Scottish judges and government on collision course over interests register

By Martin Hannan The National 11 March 2020

THE Justice Committee of the Scottish Parliament is on a collision course with the Scottish Government and leading Scottish judges after the Committee voted to continue its inquiries into the possibility of legislation to set up a register of the financial and other interests of judges.

Lord Carloway, Scotland’s senior judge, and justice secretary Humza Yousaf both told the committee by letter yesterday that they were opposed to such a register, indicating that the petition for such a register raised in 2012 by journalist and law blogger Peter Cherbi should now be dropped.

The Committee decided otherwise, however, and agreed to keep the petition open and to “seek further oral evidence in due course, in round-table formal, from constitutional and academic witnesses”.

The Committee also agreed to seek further written briefings from the Scottish Parliament Information Centre (Spice) in relation to “other potential conflicts of interests relating to key stakeholders in the Scottish judicial system”.

In a surprise move directly against the wishes of Yousaf and Carloway, the Committee agreed to consider the scheduling of this work as part of its work programming up to spring 2021.

Yousaf had told the Committee: “I would caution however that if such a register were to be established by way of legislation, rather than through the powers of the Lord President, this may be perceived as undermining the principle of judicial independence and the separation of powers between the judiciary and other branches of government.”

Yet Carloway, the Lord President and Lord Justice General, has long made known his opposition to such a register, and he told the Committee in his letter that he would not be attending to give his views.

Speaking at yesterday’s meeting, John Finnie MSP said the debate on the issue had become “polarised”.

He said: “There is an issue here that remains to be dealt with and I think the public would anticipate that there is some measure of accountability.”

Peter Cherbi told The National: “Noting the Justice Committee meeting today I am grateful to those MSPs who declared their support for the register of judicial interests – and all the MSPs who have previously worked on this petition to support it and advance the issue of judicial transparency

“Clearly the debate has become very polarised as John Finnie said during the hearing. This polarisation has come about because the judiciary are entrenched in their opposition to the same level of transparency which applies to all other branches of the executive.

“It is no accident this petition has lasted eight long years, where at every turn the judiciary have sought to undermine the petition at every hearing, invoke anyone, from government ministers to vested legal interests in an effort to shut down the petition and any debate on judicial transparency.

Sadly, the effort expended by judges against this petition, is an indication judges have something to hide and fear disclosure.”

UNCONVINCING TOP  SCOTS JUDGES WHO REFUSED TO BE TRANSPARENT:

Scotland’s recent two top judges failed to convince MSPs that a register of interests is not required for Scotland’s judiciary

Former Lord President Brian Gill, and current Lord President Lord Carloway consistently argued the existence of judicial oaths and ethics – which are both written, and approved by  judges negate any requirement for further transparency in the judiciary.

However, both the Scottish Parliament’s Public Petitions Committee – who investigated the judicial interests petition for six years, and the Justice Committee – who have considered the petition since 2018, found the judiciary’s arguments against transparency to be “unconvincing”.

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.