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

Justice Sec. Humza Yousaf opposes judicial transparency. SCOTLAND’S Justice Secretary has attempted to block further action in an EIGHT YEAR Holyrood judicial transparency probe – by claiming any primary legislation created by MSPs to require judges to declare their interests – could undermine Scotland’s top judge – who is also opposed to Petition PE1458: Register of Interests for members of Scotland's judiciary.

Writing in a letter to Margaret Mitchell MSP - Convener of the Scottish Parliament’s Justice Committee – Justice Secretary Humza Housaf claimed: “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.”

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.

Mr Yousaf also told the Justice Committee that recent details of Scottish judges working in the Gulf States while serving in Scotland were not relevant because since the judge was allegedly acting as a judge on a temporary basis – the rules did not apply to him.

However court opinions previously provided to MSPs confirm Scottish judges heard cases in the Court of Session while also working in the United Arab Emirates.

The Justice Committee previously considered material in relation to Scottish judges serving in the Gulf States & United Arab Emirates – reported in further detail 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

John Finnie MSP - Scots Judges serving in Gulf States - Justice Committee 28 May 2019

During a hearing on 28 May 2019, Justice Committee member John Finnie MSP said “I do not agree with the idea that anyone connected with the Scottish judiciary could have any role whatsoever in the United Arab Emirates.”

“I looked yesterday at the Human Rights Watch world report, which does a country by country breakdown. The United Arab Emirates is a country that is intolerant of criticism, which has played a leading role in unlawful acts in Yemen, and whose treatment of migrant workers’ rights and women’s rights is shocking. It is a country that permits domestic violence.”

I do not think that any reasonable examination of the role of a public official—and I get the point about the separation of the judiciary—would say that involvement in such a country is acceptable.”

“I believe that we need to do something and I am not content with the cabinet secretary’s response, which is just playing out the same line as before—that there is nothing to see here and we should move on.”

“I do not think that this issue will move on until we have the openness and transparency that people rightly expect of public office.”

Earlier in April 2019, Mr Yousaf wrote to the Justice Committee, claiming ““no further evidence has been provided to the Justice Committee that strengthens the arguments already put forward in favour of the introduction of the register.”

However, the 2019 letter from the Justice Secretary was found to have copied much of it’s content from a letter dated April 2014 – from the then Justice Secretary Kenny MacAskill to the Public Petitions Committee – reported in more detail here: COPY MINISTER: ‘Copied’ content from ex Minister sent by Justice Secretary Humza Yousaf to Holyrood MSPs - Public must rely on judges judging judges for transparency, Scottish Government will not create register of judges’ interests

The latest attempt by the Scottish Government to scupper the eight year probe of a cross party supported petition to create a register of judges’ interests comes after a previous Minister for Legal Affairs - Paul Wheelhouse told the Public Petitions Committee in 2014 the judiciary were concerned gangsters could see their interests.

It later transpired Mr Wheelhouse was accused of misleading MSPs after files obtained via Freedom of Information revealed there was no basis for such claims, and Ministerial advisers had attempted to hunt down any leads to back up Mr Wheelhouse - without success.

And, despite Mr Wheelhouse misleading claims of gangsters & judges – a probe by journalists uncovered instances of members of Scotland’s judiciary representing some of the country’s top gangsters in the same courts in which they serve as judges.

Former Legal Affairs Minister Paul Wheelhouse evidence to the Public Petitions Committee can be found here: TOO MANY SECRETS: Legal Affairs Minister ‘anti-transparency’ evidence to MSPs a ‘poor substitute for top judge’ as Scottish Parliament Petitions Committee consider next move on proposal to create a register of interests for judges

Mr Wheelhouse’ evidence to MSPs came during a concerted attempt by Scotland’s then top judge – Brian Gill – to block MSPs from continuing to investigate plans to create a register of judges’ interests – which – later in October 2014 – saw a full debate at the Scottish Parliament, resulting in cross party support for Petition PE1458.

In 2015, First Minister Nicola Sturgeon also intervened in the petition, demanding the petition be closed due to the judiciary’s concerns of media and public scrutiny of judges interests – reported in further detail here: INTERESTS INTERVENE: First Minister joins top judge in bid to block register of judicial interests as MSPs consider recalling Legal Affairs Minister over dodgy evidence & private meeting with Lord Gill

Despite a barrage of opposition from Scotland’s judiciary and vested legal interests, the Public Petitions Committee continued work on Petition Pe1458 for a number of years, concluding a register of judges’ interests could, and should be created.

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

MSPs on the Public Petitions Committee also looked at a model used by Norway for declarations of judges’ interests, supporting the introduction of a similar register in Scotland.

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

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

Scotland’s top judge Lord Carloway also wrote to the Justice Committee in late January, refusing a second request from the Justice Committee to face questions on his opposition to the creation of a register of judicial interests.

Lord Carloway’s most recent refusal to give evidence and his letter are reported in further detail here: 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’

Letter from Justice Secretary Humza Yousaf to Margaret Mitchell, Convener Justice Committee 07 February 2020

Public Petition PE 1458: Register of interests for members of Scotland’s judiciary

Thank you for your letter of 22 November asking me to review the evidence you heard on 19 November and the previous evidence taken regarding this petition and to then set out in detail why I do not think it is necessary to establish a register.

The evidence of 19 November: Written Evidence

On the 19 November, the Committee considered written evidence in the form of a letter from the petitioner. I think it is important to address a number of issues with the evidence contained in his letter. The Lord President does not appoint judges or sheriffs to the bench. Judicial appointments are made by the Scottish Ministers on the recommendation of the Judicial Appointments Board for Scotland (JABS). JABS are an independent statutory body and carry out a rigorous recruitment process which involves written application, tests, interview, references and background checks carried out before recommendations are made based on merit from candidates who meet statutory criteria.

The petitioner highlights the press coverage of two former Scottish judges sitting in other jurisdictions. One of these judges was retired, the other was still a temporary judge at the relevant time. Once a member of the judiciary has retired, the individual would not be included in any proposed register of interests. Temporary judges are not full time salaried judiciary. These are judges who can be called on to cover gaps in the court rota and therefore not covered by the restrictions on other employment which full time judiciary are. Whilst a register of interests would have disclosed this additional work, it would not have prevented it being carried out.

Since the Petition was originally introduced to the Parliament, a register of recusals was introduced in 2014 and, I understand, is being used by both the judiciary and those appearing in court. From 1 February 2018, the register was extended to also include members of the Scottish Tribunals. The reasons for recusal tend to relate to personal knowledge of a litigant or witness or previous involvement in another relevant case. The register of recusals does not appear to have highlighted the sort of problems with conflicts of interest of the nature that the petitioner is concerned about. For clarification also, there are 277 justices of the peace, rather than 450.

The proposed reforms to the law of corroboration in Scotland, which the petitioner refers to, were aimed at addressing the difficulty in prosecuting certain types of criminal cases . These proposals were based on detailed research and analysis conducted by Lord Carloway and set out in a published report. It is difficult to see the relevance of this as evidence in support of a register of judicial interests.

The petitioner cites extensive written submissions of evidence in relation to this petition and the Committee have asked that I review all previous evidence. In doing so, I can see that almost half of those submissions are from the petitioner and over one third are either correspondents declining to make a submission or from the Scottish Government, the Scottish Courts and Tribunals Service or the Lord President and present evidence which is not in support of the register. The petitioner’s submissions do not always raise new evidence and cover some matters that would be outwith the scope of this petition.

Oral evidence: In terms of the oral evidence taken, a considerable part of this discussion focussed on the system for complaints about members of the judiciary. I note the point raised that Scotland differs from other jurisdictions in that upheld complaints are not published. I agree that this is a matter that consideration could be given to as it is transparent and consistent with the complaint process for many professions, however complaints against the judiciary are the responsibility of the Lord President and there may be valid reasons why complaints are not published. I also note the distinction that was explained by Ms Ali between judicial decisions and service complaints about the judiciary. This was followed by discussion on independence and accountability.

I have also considered the written and oral submissions from Professor Alan Paterson, the academic who has contributed views on this petition. I note that Professor Paterson told the Public Petitions Committee that he had not reached a concluded opinion on a register of interests for the Scottish judiciary. He explains that this question comes back to the role of the judiciary in a democracy and there is a need to balance judicial independence and accountability. Professor Paterson told the Public Petitions Committee that he considers transparency as part of accountability. I would agree with this point and I’m of the view that the judiciary’s decision making is transparent and subject to appeal.

International factors: At the time the Petition was lodged, and in a number of the petitioner’s subsequent written submissions, reference is made to the New Zealand Parliament’s consideration of a judicial register of interests. By a large majority, the New Zealand Parliament voted down a Bill to create a register after considering the whole issue and its difficulties. Few analogous jurisdictions to Scotland have legislated for a judicial register of interests, and those that have did so in response to evidence of challenges specific to those jurisdictions. South Africa, for example, created one as part of cementing its new democracy.

The Council of Europe Group of States Against Corruption (GRECO) is an independent international body tasked with monitoring and advancing anti-corruption measures in countries across the world. It has examined the need for a judicial register of interests twice in Scotland and the most recent report of the Fourth Evaluation Round concluded that there was no evidence of corruption in relation to the judiciary in Scotland or of judicial decisions being influenced inappropriately. They do not recommend the introduction of an asset declaration scheme.

Ways to introduce a scheme: Your letter also asked for the Scottish Government’s view 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.

At present, and in line with the requirement to uphold the continued independence of the judiciary, set out in section 1 of the Judiciary and Courts (Scotland) Act 2008, Scottish Ministers do not have existing powers to establish such a register, whether voluntary or mandatory. Accordingly primary legislation would be required to implement any such register.

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.

Conclusion: My predecessors set out in detail in earlier correspondence the safeguards in place. These safeguards are the judicial oath, the statement of principles of judicial ethics and the various rules made under the Judiciary and Courts (Scotland) Act 2008 which concern complaints about the judiciary and judicial conduct. I would draw particular attention to the statement of principles of judicial ethics. This is some thirty five pages long and sets out clearly the standards judicial office holders are expected to meet. Breach of the ethics can result in serious consequences for a judicial office holder. Having considered the evidence, I share the views of both of my predecessors that there are sufficient safeguards in place to ensure the impartiality of the judiciary.

As mentioned previously, in the time since this petition was lodged with the Parliament, further measures have been introduced for, and by, the judiciary; such as the register of recusals and publication of judicial expenses and overseas travel. I believe that these measures have increased the transparency of the judiciary.

I am also mindful of the statutory requirement within the Judiciary and Courts (Scotland) Act 2008, that Scottish Ministers and Members of the Scottish Parliament must uphold the continued independence of the judiciary.

I have given further consideration to the matter and have considered the evidence before the Justice Committee. I remain of the view that it is not necessary to establish a register of interests. I hope the detail of this letter explains my reasons for that

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.