JUDICIAL REGISTER: Top judge failed to provide convincing argument against register of judges’ interests, Justice Committee evidence calls into question Justice Secretary’s misleading explanation of Scottish judges serving in Scotland and Gulf States courts

Lord Carloway failed to provide convincing reason against judicial register. EVIDENCE heard by the Scottish Parliament’s Justice Committee during MSPs recent consideration of a cross party plan to create a register of judges’ interests – reveals Scotland’s top judge again failed to provide any convincing arguments against a proposal to require Scotland’s judges to declare all their interests.

Petition PE1458: Register of Interests for members of Scotland's judiciary – originally lodged 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.

A Register of Judicial Recusals was created in April 2014 by now former Lord President – Lord Brian Gill – in an attempt to persuade to drop their investigation of a proposal to create a fully published register of judges interests.

However, after eight years of investigation by the Public Petitions Committee and now the Justice Committee – the proposal - which has cross party backing, media support, support from independent former Judicial regulators and has sparked wide public debate on the state of Scotland’s judiciary – has now earned the backing of Justice Committee MSPs who believe the proposal should go forward to create a full register of interests – putting judges on the same level of transparency as elected members of the Scottish Parliament.

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.”

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.”

Upon consideration of written evidence and material provided by the Petitioner in response to: letter from Lord Carloway, letter from Justice Secretary Humza Yousaf and letter from Scottish Justices Association - members of the Justice Committee 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. Video footage of the hearing can be viewed here: Register of Judges Interests Petition PE1458 Justice Committee 10 March 2020

Minutes of the meeting concluded with 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.

Response to Lord Carloway's letter of 29 January 2020 - The letter from Scotland’s top judge – Lord Carloway to the Justice Committee in which Lord Carloway refused for the second time to give evidence to MSPs on the petition, was 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’

Responding to Lord Carloway's letter of 29 January 2020 – evidence submitted in written form by the petitioner to the Justice Committee stated:

Noting the terms of Lord Carloway's letter, the Lord President's earlier evidence to the Petitions Committee on 29 June 2017 is available in video format here Lord Carloway evidence on Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017 for members interest.

I would encourage the Justice Committee to engage with Alex Neil MSP, who attended that hearing and asked pertinent questions of the Lord President. I believe the Committee could gain further insight into the issue of judicial interests, and failures of judges to declare recusals, by hearing from Mr Neil.

Lord Carloway states in his letter that "Elected office and judicial office are not comparable"

I believe anyone watching the evidence session where Lord Carloway faced questions from Mr Neil, would disagree with the Lord President's statement.

Transparency is, a public expectation of public office. A necessary guardian of fair hearing, truth, and a form which holds everyone accountable. Transparency can many times, be the foundation of public trust in politics, public life, and even the courts - where - without transparency, where would justice be?

The judiciary are the most powerful branch of the executive and therefore must be held to be the most accountable and adhere to the same level of transparency which applies to all other branches of public service.

Importantly, transparency does not impede independence of the judiciary, or even any other branch of the Executive. Rather transparency enhances public trust, and adherence to public service.

Lord Carloway states the following: "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."

The policy adopted by the judiciary of 'judges judging judges' is what ended up blunting any meaningful powers to the office of the Judicial Complaints Reviewer to oversee judicial complaints in Scotland.

These issues involving a lack of oversight of judicial complaints powers have been widely reported in the media: My position is window-dressing, says legal watchdog with budget of £2000

Judicial Conduct, judicial interests and related issues are certainly a matter for primary legislation, and it is worth noting the office of the Judicial Complaints Reviewer was established by Section 30 of the Judiciary and Courts (Scotland) Act 2008

In terms of a failure to declare interests or to maintain a register of interests, I draw to the attention of members - the issue of Lord Hoffmann's failure to declare interests in Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (1999), commonly referenced as "Hoffmann/Pinochet"

Hoffmann/Pinochet tainted the Law Lords over the question of declarations of interest despite their requirement to declare in a register, and subsequently the UK Supreme Court was created in the Constitution Reform Act 2005 Part 3 Section 23

Importantly the previous requirements of Law Lords to declare interests when they sat as Law Lords in the House of Lords, was omitted from the 2005 Uk legislation and set the stage where to this day - the Justices of UKSC have stated they themselves judge they do not require to declare their interests.

The UKSC's position on judicial interests UKSC Judges Expenses and Interests

The statement from the UKSC justices which has been quoted by two Lord Presidents previously, reads as follows: "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."

Lord Hoffmann's failure to declare his interests and the impact of such on public confidence could be summarised by Lord Hutton in his ruling on Hoffmann/Pinochet:

Lord Hutton said: ‘there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.’

While no one has been willing to discuss exactly why UKSC judges lost the previous Law Lords requirement to declare and register interests - Lord Hoffmann's failure to declare his interests in the Pinochet case, set a standard for judges to declare interests - which even Professor Paterson in his testimony to the Public Petitions Committee agreed with.

The judiciary's position on declarations of interests and creating a register of judicial interests, is contrary to the wider public interest and expectation of transparency - especially in our courts.

While noting the Lord President's repeat of his earlier comments in relation to issues involving the Council of Europe, and the Judicial Council in Scotland, Lord Carloway has not provided any convincing argument against creating a register of judicial interests.

It is also very clear from Lord Carloway's letter, the judiciary continue to maintain resistance to the very notion of a register of judicial interests, and will not create one on their own.

As the Public Petitions Committee have already found the petition's proposal of a Register of Judicial Interests to be "workable", and there has been consistent support including media and public interest and for the petition since it was filed in 2012 - and given the Justice Committee are minded to advance this matter as no convincing argument against this proposal has been made, I urge members to take the petition forward and advance PE1458 to primary legislation, to ensure all members of Scotland's judiciary declare and register their interests, in the same way as all others in public life, including all 129 MSPs of the Scottish Parliament register and declare their interests.

Further evidence submitted to the Justice Committee in response to the Justice Secretary’s continuing opposition to the creation of a register of judges’ interests, noted serious discrepancies in the Justice Secretary’s claims regarding Scottish judges serving in middle east Gulf States – reported in an earlier article 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 Committee have previously heard and viewed detailed evidence identifying several Scottish judges who served in Scottish courts while also serving in the Gulf States. MSP John Finnie made several observations on this in an earlier Justice Committee hearing here: John Finnie MSP - Scots Judges serving in Gulf States - Justice Committee 28 May 2019

Responding to the Cabinet Secretary's letter of 7 February 2020 – evidence submitted in written form by the petitioner to the Justice Committee stated:

Noting the Cabinet Secretary's response, I wish to point out one of the two Scottish judges in articles submitted to the Justice Committee, was indeed serving in Scotland at the time of his service in the UAE, - dates on court opinions delivered by Lord McGhie in Scotland and previously provided to the Justice Committee show this to be the case.7

The newspaper investigation stated "Our investigation found that Lord McGhie has been registered to sit in the UAE for the past two years while he was also dispensing justice at the Court of Session in Edinburgh." - This was accurately reported in the media: Scottish judges slammed for being on payroll of oppressive regimes abroad

Regarding Lord Hope of Craighead, members will be aware Lord Hope serves in the UAE and has done for some time, while also remaining a cross bench peer in the House of Lords, and therefore being required to declare his interests: Lord Hope of Craighead Register of Interests

As well as having a continuing effect on public life in the UK and Scotland as a peer, Lord Hope's House of Lords register of interests list "Chief Justice of the Abu Dhabi Global Market Courts (commercial court system in Abu Dhabi)" - necessitating the swearing of a judicial oath in Abu Dhabi, "Council Member and Trustee, Commonwealth Magistrates’ and Judges’ Association" & "Door Tenant, Brick Court Chambers, London, as an arbitrator".

Members of the Justice Committee will be aware many retired Scottish judges are brought back into service in the Scottish Courts, or for the purposes of heading inquiries and other public service roles - such as Lord Bracadale , and others such as retired Lord President Brian Gill, who is also listed as working as a Judicial Commissioner (along Lord Bracadale) for the UK Surveillance Commissioner: Appointment of 13 Judicial Commissioners

Lord Gill is also involved in calling for a major inquiry into the land tenure system in Scotland - and therefore still maintains an influence on legislation and public life in Scotland.

Clearly, where retired judges are brought back into service, for court duty or inquiries, the Judiciary of Scotland should maintain their register of interests, given these judges are again, serving either the courts or the Scottish Government, and therefore contributing to public life in Scotland.

On the issue of recusals - in relation to financial interests (although the petition does seek to include all interests & links of members of the judiciary) for some reason there have never been any requirements for judges to disclose financial links which may result in a recusal published in the register of recusals.

And, I would draw to the attention of the Justice Committee - reports of a Sheriff heard a case involving a supermarket in which he had shareholdings, and then refused to recuse himself from the case - reported by the Herald newspaper: Pressure grows for register of judges' interests as sheriff hears Tesco case while holding shares in company

A further report on the same Sheriff revealed he also held shares in a company which was the subject of Scotland's biggest Proceeds of Crime order in connection with activities in Iraq, reported by the Scottish Sun: Judge has Shares in Bribe Firm

I have previously drawn members attention to the promotion of former top prosecutor Lord Advocate Frank Mulholland to the position of a Senator of the Court of Session. It is a matter of record Lord Mulholland supported Lord Carloway's review to abolish corroboration and previously appeared before the Justice Committee as Lord Advocate, as a witness expressing such support.

The fact Scotland's top prosecutor was given a position as a top judge in the Court of Session, is a matter of public interest, and as anyone may conclude, could create multiple conflicts of interest particularly given the short gap between Lord Mulholland's retirement as Lord Advocate and elevation to the judiciary.

These are issues which are clearly of relevance to a register of judges interests and should be included in such a register, given there are clear examples of cases in the past where prosecutors, promoted to members of the judiciary have heard cases and appeals by persons they previously prosecuted, but failed to declare any interest in court.

Over the course of six years of investigation and consideration by the Public Petitions Committee of evidence and hearings, every opportunity was given to myself and others, to respond to hearings, evidence and submissions from others in relation to Petition PE1458.

There is a stark contrast in these submissions, where only the judiciary and vested legal interests have taken an opposite view to transparency and declarations of interest - to the point Lord Gill refused twice to appear before the Petitions Committee, and now Lord Carloway has refused to appear before the Justice Committee on this petition.

Everyone else, and including two Judicial Complaints Reviewers who filed submissions with the Public Petitions Committee, and the Justice Committee, support the creation of a register of judicial interests.

Given the Cabinet Secretary's comments and the lack of any further arguments advanced by the Scottish Government and Lord President against the creation of a register of judicial interests, I would urge the Justice Committee to move forward and advance the petition to primary legislation.

An earlier article featured new material presented to the Justice Committee on the issue of how Justices of the Peace were deliberately excluded from the recusals register created by Lord Gill in April 2014 – 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

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.