‘Judicial Independence’ gives vested interests, tax dodging, rich judges an immunity from transparency says top judge as Lord Gill refuses to answer MSPs questions over register of judicial interests

Judicial Immunity from transparency - Lord Gill will not answer questions over judge’s financial interests. SCOTLAND’S top judge, Lord President Lord Brian Gill has again refused to attend the Scottish Parliament to answer questions from MSPs who are considering the issues of judicial transparency raised in Petition PE1458: Register of Interests for members of Scotland's judiciary, filed by Scots law journalist Peter Cherbi.

The petition, which has caused several run-ins with Lord Gill, who was previously viewed as more open to change in the justice system, calls on the Scottish Parliament to legislate for a requirement that all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

The latest letter from Lord Gill to the Convener of the Public Petitions Committee, David Stewart MSP, which is dated 28 May 2013, cites issues of “constitutional principle” and the “independence of the judiciary” as reasons for Lord Gill’s refusal to attend the PPC to give evidence on judge’s interests and provide details on how the current system of judges recusing themselves operates in Scotland. The response from the Lord President also fails to answer questions now put twice to the Lord President, asking for statistical information on how the system of judges recusing themselves operates.

Again, the Lord President sidestepped all the questions from MSPs and merely stated “The Lord President has been responsible for matters concerning the conduct of judicial office holders since April 2010. During that period there has been no case in which a judge has been found guilty of misconduct for a failure to recuse.”

Lord Gill has now been asked twice by MSPs to provide information on how many judges have been recused and whether there is more detailed evidence on the effectiveness of the current system. Clearly these are not questions Scotland’s top judge can or is willing to provide answers to, raising serious questions over the honesty and integrity of Scotland’s judiciary.

Lord Gill went on to cite the Scotland Act, reminding MSPs they may not require a judge to attend proceedings for the purposes of giving evidence, claiming the missing part of the Scotland Act was not a loophole, rather a protection mechanism for protecting the independence of the judiciary from politicians. However, many will see this as a mechanism for covering the backs of the unelected judiciary who are bitterly resisting transparency and hold such power they can easily strike down legislation with one mere comment or opinion in court.

In an attempt to placate his stubborn position on the protection of judges vast secret & financial interests, as well as records of criminal convictions including Benefits Cheating, Lord Gill again cited an EU report which itself has been prepared and written by judges who have a vested interest in preventing any register of judicial interests going ahead. The report,which Lord Gill and the Scottish judiciary are relying on to keep their dirty linen secret, is available here : GRECO FOURTH EVALUATION ROUND Corruption prevention in respect of members of Parliament, Judges and Prosecutors.

Lord Gill conveniently left out of his letter to the PPC Committee Convener, any references to his judicial colleagues who had signed up to be interviewed to complete the EU report, rather than attending the Scottish Parliament to answer questions on their own secretive financial interests.

Lord Gill ended his letter by offering to meet the Committee Convener in private to discuss the constitutional implications of the Public Petitions Committee’s invitation. The irony of Scotland’s to judge holding secret meetings to discuss a call for transparency within the judiciary will not be lost on legal observers to this on-going battle over the hidden secrets of Scotland’s judges.

Lord Gill’s letter to the Convener of the Public Petitions Committee David Stewart MSP, in full :

Lord Gill’s second refusal to answer questions on judges secret & financial interests PUBLIC PETITION PE1458

Thank you for your letter of 18 April 2013. I regret that I again have to decline your committee's invitation to appear before it. I do so for reasons of constitutional principle. I intend no discourtesy to your committee.

Judges have from time to time given evidence to committees of the Scottish Parliament on matters that affect the administration of justice in Scotland. I hope that that has been helpful in the legislative process. Judicial participation in the work of the committees must however be kept within prudent limits.

Section 23(7) of the Scotland Act provides inter alia that the Parliament may not require a judge to attend its proceedings for the purposes of giving evidence. This is not a loophole. It is a necessary part of the constitutional settlement by which the Parliament is established. Its purpose is to protect the independence of the judiciary, a vital constitutional principle that is declared in section 1 of the Judiciary and Courts (Scotland) Act 2008.

When a committee invites a judge to give evidence before it, I have to decide whether the subject matter might infringe the principle of judicial independence; and whether the evidence required could be satisfactorily given in writing.

In my correspondence with you I have set out carefully why I believe that a register of interests for the judiciary is both unnecessary and unworkable. I have directed you to an independent scrutiny of the judiciary in the United Kingdom that has on two occasions considered and rejected the need for such a register. I have also directed you to the decision of the United Kingdom Government to accept that finding, and to the decision of the United Kingdom Supreme Court not to create a register. That I think, is as much useful evidence as I am in a position to give on the subject; but if there is any further information that you feel would be relevant and helpful to the committee, please let me know and I will consider the matter further.

In your letter you have asked whether any central record has been kept of failures by judges to recuse themselves. The Lord President has been responsible for matters concerning the conduct of judicial office holders since April 2010. During that period there has been no case in which a judge has been found guilty of misconduct for a failure to recuse.

If you would find it helpful I would be pleased to meet with you to discuss the constitutional implications of the Committee's invitation.

Lord Gill earlier refused to attend the Petitions Committee to discuss issues raised in Petition PE1458, reported here : Scotland’s top judge Lord Gill refuses to attend Scottish Parliament to face questions over opposition to register of judicial interests

Diary of Injustice reported on an earlier meeting of the Petitions Committee on 5th March 2013 where MSPs initially invited Lord Gill to attend Holyrood, here : SILENCE IN COURT : Scotland’s top judge Lord Gill summoned to Parliament over ‘vested interests’ attempt to block Register of Judicial Interests petition and video footage of that earlier meeting is also available online here : Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament.

All previous reports from Diary of Injustice and further information on the drive to create a register of interests for Scotland’s judiciary can be viewed here : A Register of Interests for Scotland's Judiciary

A full report on the story along with details of judges jet setting around the world, and support from the Judicial Complaints Reviewer Moi Ali for the register of interests proposal, can be viewed in the Sunday Mail newspaper today HERE

JUDGES FEAR THE REGISTER - PETITION SEEKS TRANSPARENCY IN COURT WITH REGISTER OF JUDICIAL INTERESTS :

Petition PE01458: Register of Interests for members of Scotland's judiciary calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand's Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests. Diary of Injustice has featured coverage of the petition in earlier reports, Register of Interests for Judges.

The petition also features references to debate in the Parliament of New Zealand who are considering legislation to create a register of interests for the judiciary. It is time for Scotland to move in the same direction and create a similar register of interests for the judiciary of Scotland and all its members, increasing the transparency of the judiciary and ensuring public confidence in their actions & decisions.

The full details of the New Zealand Register of Pecuniary Interests of Judges Bill, should be looked at for a model of similar legislation in Scotland, can be viewed online here  Register of Pecuniary Interests of Judges Bill.

The New Zealand Law Commission’s discussion paper on a register of judicial interests which recommends further inclusion of court staff in a register of interests, can be downloaded here : NZLC IP21 - Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

In comparison to New Zealand’s effort to ensure transparency in the judiciary, Scotland’s judges and the Scottish Government have, unsurprisingly backed away from any similar measures, even concealing criminal charges and convictions of Scottish judges, where in one case a Scottish judge was charged with fiddling benefits claims, exposed in a Diary of Injustice investigation into Judge’s financial fiddles, here : CAREER CROOKED : Investigation reveals Scottish judges are CONVICTED CRIMINALS, Drunk Drivers,Tax Dodgers & alleged BENEFITS CHEATS

The on-going investigation by Diary of Injustice into members of Scotland’s judiciary has already revealed a series of judges appear to be involved in OFFSHORE TAX AVOIDANCE schemes, associations with convicted criminals & organised crime, prostitution rackets, accepting hospitality & payments from well known corrupt solicitors representing dodgy law firms while others on the bench are engaging in questionable investments & duties which appear to be in conflict with their positions as members of the judiciary. More on these findings can be read in an earlier article here : Offshore trusts, property holdings, insurance syndicates, hospitality from dodgy lawyers, yet no plans for a register of interests for Scottish judges

SILENT RUNNING : Six weeks of ‘Victorian’ silence from Scotland’s top judge after MSPs request Lord Gill to reconsider refusal to attend Holyrood to answer questions on register of judicial interests

Larger on the Orient Express : Lord Gill stonewalls Scottish Parliament over judge’s vast secret financial interests. ALMOST SIX WEEKS since Scotland’s top judge, Lord President Lord Brian Gill was asked by MSPs from the Scottish Parliament’s Public Petitions Committee to reconsider his bitter opposition to attending Holyrood to answer questions on a proposal to create a register of judicial interests, the Lord President has apparently yet to find time between international travel commitments to give a written response to Scotland’s elected Parliament.

The second invitation from the Scottish Parliament to Scotland’s most senior judge to attend Holyrood was issued after Lord Gill earlier refused to attend the Petitions Committee to discuss issues raised in Petition PE1458, reported here : Scotland’s top judge Lord Gill refuses to attend Scottish Parliament to face questions over opposition to register of judicial interests

Petition PE1458: Register of Interests for members of Scotland's judiciary which was debated again at the Public Petitions Committee on Tuesday 16 April 2013, calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand's Parliament) or to amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

Diary of Injustice previously reported in mid April that the Scottish Parliament’s Petitions Committee issued a statement on Friday 19 April, reporting that Lord Gill had been asked to reconsider his decision not to appear in front of the Scottish Parliament’s Public Petitions Committee in a letter issued by Convener David Stewart MSP on behalf of the Committee. The invitation asks Lord Gill to reconsider his decision not to attend the committee to discuss petition PE1458, which calls for legislation to be put in place to require all members of the judiciary in Scotland to submit their interests and hospitality received to a publicly available register of interests.

Committee Convener David Stewart MSP said: “As a Scottish Parliament committee, our job is to fully examine the petitions before us and explore the issues involved.Only by doing this can we ensure that we exhausted every possible avenue in taking a petition forward. To do this without hearing from the Lord President in person would be difficult. That is why we are disappointed that Lord Gill has felt unable to attend a committee meeting to discuss these issues fully. We have written to Lord Gill asking him to reconsider his decision in the hope that our committee can have a full and frank discussion of the issues.”

MSPs letter to Lord Gill requesting he attend Scottish Parliament. The text of the letter sent by Convener of the Petitions Committee, David Stewart MSP to Lord Gill states : “Notwithstanding your response, the Committee still feels it would assist its consideration of this petition and aide its understanding of the issues raised were you able to make yourself available.  The Committee can see benefit in being able to explore with you orally the written evidence provided. By way of example, we note that to your knowledge no situation has arisen, within your tenure as Lord President, where a judge has failed to recuse him or herself. Would a central record be kept of any such instances and if so, are you able to provide any information on the numbers involved? I and the other members of the Committee would be most grateful if you were able to reconsider the invitation from the Committee to attend in person.”

Diary of Injustice reported on an earlier meeting of the Petitions Committee on 5th March 2013 where MSPs initially invited Lord Gill to attend Holyrood, here : SILENCE IN COURT : Scotland’s top judge Lord Gill summoned to Parliament over ‘vested interests’ attempt to block Register of Judicial Interests petition and video footage of that earlier meeting is also available online here : Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament.

All previous reports from Diary of Injustice and further information on the drive to create a register of interests for Scotland’s judiciary can be viewed here : A Register of Interests for Scotland's Judiciary

JUDGES ABOVE THE LAW - PETITION SEEKS TRANSPARENCY IN COURT WITH REGISTER OF JUDICIAL INTERESTS BACKGROUND :

Petition PE01458: Register of Interests for members of Scotland's judiciary calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand's Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests. Diary of Injustice has featured coverage of the petition in earlier reports, Register of Interests for Judges.

The petition also features references to debate in the Parliament of New Zealand who are considering legislation to create a register of interests for the judiciary. It is time for Scotland to move in the same direction and create a similar register of interests for the judiciary of Scotland and all its members, increasing the transparency of the judiciary and ensuring public confidence in their actions & decisions.

The full details of the New Zealand Register of Pecuniary Interests of Judges Bill, should be looked at for a model of similar legislation in Scotland, can be viewed online here  Register of Pecuniary Interests of Judges Bill.

The New Zealand Law Commission’s discussion paper on a register of judicial interests which recommends further inclusion of court staff in a register of interests, can be downloaded here : NZLC IP21 - Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

In comparison to New Zealand’s effort to ensure transparency in the judiciary, Scotland’s judges and the Scotish Government have, unsurprisingly backed away from any similar measures, even concealing criminal charges and convictions of Scottish judges, where in one case a Scottish judge was charged with fiddling benefits claims, exposed in a Diary of Injustice investigation into Judge’s financial fiddles, here : CAREER CROOKED : Investigation reveals Scottish judges are CONVICTED CRIMINALS, Drunk Drivers,Tax Dodgers & alleged BENEFITS CHEATS

The on-going investigation by Diary of Injustice into members of Scotland’s judiciary has already revealed a series of judges appear to be involved in OFFSHORE TAX AVOIDANCE schemes, associations with convicted criminals & organised crime, prostitution rackets, accepting hospitality & payments from well known corrupt solicitors representing dodgy law firms while others on the bench are engaging in questionable investments & duties which appear to be in conflict with their positions as members of the judiciary. More on these findings can be read in an earlier article here : Offshore trusts, property holdings, insurance syndicates, hospitality from dodgy lawyers, yet no plans for a register of interests for Scottish judges

What is there to hide ? : A Register of Judicial Interests will bring much needed transparency & accountability to Scots Judiciary too used to life behind closed doors

Top judge Lord Gill has so far refused to answer questions on judicial secret interests. AS reported by Diary of Injustice earlier this week, MSPs from the Scottish Parliament’s Public Petitions Committee have  once again invited Scotland’s top judge, the Lord President Lord Brian Gill to attend Holyrood to explain his ‘robust’ opposition to a proposal put forward in Petition PE1458 which calls for a Register of Judicial Interests for all members of Scotland's judiciary.

This second invitation from the Scottish Parliament to Scotland’s most senior judge comes after the Lord President Lord Gill earlier refused to attend the Petitions Committee to discuss issues raised in Petition PE1458, reported here : Scotland’s top judge Lord Gill refuses to attend Scottish Parliament to face questions over opposition to register of judicial interests

Petition PE1458: Register of Interests for members of Scotland's judiciary which was debated again at the Public Petitions Committee on Tuesday 16 April 2013, calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand's Parliament) or to amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

The full Official Report of last week’s Petitions Committee meeting where Petition PE1458 was discussed, has now been published, available online HERE, and is reprinted below, along with a link to video footage of the PPC meeting for readers convenience.

All previous reports from Diary of Injustice and further information on the drive to create a register of interests for Scotland’s judiciary can be viewed here : A Register of Interests for Scotland's Judiciary

Petition 1458 Register of Interests for Scotland's Judiciary Scottish Parliament 16 April 2013 (click image below to watch video footage of Petitions Committee debate)

Judiciary (Register of Interests) (PE1458)

The Convener David Stewart MSP:  The eighth current petition is PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. Members have a note by the clerk and the submissions. Members will be aware that there has been a lot of press coverage of the issue and that Lord Gill, the Lord President, declined the invitation to appear before the committee. As members will know, under the Scotland Act 1998 we have no power to cite judges to appear before us.

We received a courteous letter from Lord Gill, but it is important for us to get key figures in the judiciary to help us with the petition. I suggest that we send a courteous letter back, re-inviting Lord Gill and asking him how many judges have been recused and whether there is more detailed evidence on the effectiveness of the current system.

We should also seek the views of the Judicial Appointments Board for Scotland and the judicial complaints reviewer. If members think that it is important to have people in front of us, we could ask representatives of those latter two bodies to attend.

I know that several members have fairly strong views on the issue.

Chic Brodie MSP:  We have seen the answer from the Lord President. No one has said that the Scotland Act 1998 is perfect and, in this instance, it is not. We are all equal before the law, even those who dispense it. We should send a courteous letter, but it should be robust, on the basis that the Lord President has written to us but his letter does not necessarily answer all our questions. What is there to hide?

I am sure that we all want openness and transparency in our Parliament, which is the sovereign Parliament of the Scottish people. As a member of that constituency, the Lord President, like anyone else, should at least pay obeisance to a request by the committee on behalf of the Parliament for him to attend. I sincerely hope that he reconsiders his position and attends at the earliest opportunity.

Jackson Carlaw MSP :  We cannot compel the Lord President to give evidence, but I would say that he has already set aside that provision by choosing to contribute evidence in writing. We are seeking to explore that evidence with him further, now orally, which I think is entirely reasonable.

I would put an accent on Chic Brodie’s point, because the unintended consequence of the Lord President’s not coming is to gather support for the petition in the committee in the absence of our being able to establish for ourselves the necessity for progressing with its proposals. That is unfortunate. Therefore, we should say as politely as possible that, although the Lord President with his great erudition and extraordinary intellectual capacity might not be able to anticipate what further advice he could give us that we would find of interest or helpful, that is nonetheless something that we might be able to determine.

The Convener David Stewart MSP : To recap, we will write to Lord Gill and ask him to attend. We will ask him how many judges have been recused and whether there is more detailed evidence on the effectiveness of the current system. We will also seek the views of the Judicial Appointments Board for Scotland and the judicial complaints reviewer.

Do members agree to that course of action? Members indicated agreement.

SILENCE IN COURT : Scotland’s top judge Lord Gill summoned to Parliament over ‘vested interests’ attempt to block Register of Judicial Interests petition

Lord Gill to appear before msps over objections to register of judges interests. SCOTLAND’S Lord President Lord Brian Gill is set to appear before the Scottish Parliament to explain why he is so committed to blocking a register of judicial interests which would reveal judges’ wealth, business connections and other relationships including high earning jobs outside of the court and even criminal records which have so far been kept secret from the public scrutiny.

The move by the Scottish Parliament’s Petitions Committee to summon Lord Gill comes after a candid debate last Tuesday 5 March on the strength of the Lord President’s written opposition to a law journalist’s PUBLIC PETITION calling for a Register of Judicial Interests.

Petition PE01458: Register of Interests for members of Scotland's judiciary, which calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand's Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

During last week’s meeting of Holyrood’s Public Petitions Committee, MSPs engaged in a substantive debate on the merits of the petition and gave their reaction to the Lord President’s strongly worded letter to Committee members in which he attacked plans to call for a register of interests for judges. Lord Gill also criticised the petitioner as “naive” and “misguided” over his call to make judges declare their interests in a public register. Lord Gill’s letter followed two others from the Law Society of Scotland and the Scottish Government’s Justice Department who are also attempting to shut down debate on the issue.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament (click image below to watch video footage of Holyrood debate)

Committee member Jackson Carlaw MSP (Scottish Conservative), said “When I first saw this petition I wasn’t terribly impressed. But I’m more impressed as a consequence of the responses we received.The student anarchist in me slightly smells the whiff of vested interests closing doors and backs being slapped in an effort to shut the whole matter down.”

Mr Carlaw continued : “I would very much like us to commission an evidence session and invite the Lord President, if that’s within our competence, and other vested interests who believe we should close this down to justify their position to the committee. Since it’s quite clear no other area is examining this at present, I think that, on behalf of the petitioner, this is an issue that should be aired in public rather than just in writing.”

Committee chairman and Labour MSP David Stewart (Scottish Labour) said: “The petitioner put quite an interesting argument forward to say that there’s no real evidence here. I mean, how many judges are declaring an interest and recusing during the course of a case? Or are there any judges holding a case in which they’ve got an interest and they’re not declaring an interest? Also, lots of other public groups have to have a register of interests – why are judges any different?”

Chic Brodie MSP (SNP) also took issue with some of the terms of Lord Gill’s protestations in which the Lord President claimed judges should be shielded from the media and more public scrutiny. Mr Brodie said: “If you want to take out ‘judges’ and put in ‘politicians’, why are they different?”

Mr Brodie agreed with Jackson Carlaw’s suggestion the Lord President be called to attend Holyrood, and also went further, asking whether the Committee could look at the wider interests of judges and not just pecuniary interests as proposed in the New Zealand bill which is being used as a comparison for the introduction of a similar register for Scottish judges.

Mr Brodie’s suggestion of a wider investigation into judges interests falls in line with proposals made by the New Zealand Law Commission’s discussion paper on a register of judicial interests, which recommends inclusion of court staff in a register of interests. The New Zealand Law Commission proposals can be downloaded here : NZLC IP21 - Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

John Wilson MSP (SNP) also agreed with the invite to Lord Gill to attend, and to also seek further information on exactly how the current system functions where judges are supposed to declare their interests if a conflict arises, and for the Lord President to explain why he wrote to the Committee in such opposing terms to the petition.

The Sunday Mail newspaper reported on developments at the Scottish Parliament, here :

Scotland's top judge summoned to appear before MSPs after trying to block register of interests

M’Lud, you’ve a pleading cheek : MSPs demand top judge explains why he tried to block register of interests

EXCLUSIVE : By Russell Findlay, Sunday Mail 10 Mar 2013

A HOLYROOD committee want the law chief to explain why he tried to halt a register which would reveal judges' business, professional and financial links.

SCOTLAND'S top judge is to appear before MSPs after he tried to block a judicial register of interests. Lord Gill – the £214,000-a-year Lord President – dismissed the need for judges to reveal business, professional and financial links.

The identity of a judge convicted of benefit fraud would also be likely to be revealed if such a register existed.

Holyrood’s petitions committee want Gill, 71, to explain his opposition to the transparency motion by legal reform campaigner Peter Cherbi.

Committee member Jackson Carlaw, Scottish Conservative deputy leader, said: “When I first saw this petition I wasn’t terribly impressed. But I’m more impressed as a consequence of the responses we received.

“The student anarchist in me slightly smells the whiff of vested interests closing doors and backs being slapped in an effort to shut the whole matter down.

“I would very much like us to commission an evidence session and invite the Lord President, if that’s within our competence, and other vested interests who believe we should close this down to justify their position to the committee.

“Since it’s quite clear no other area is examining this at present, I think that, on behalf of the petitioner, this is an issue that should be aired in public rather than just in writing.”

Committee chairman and Labour MSP David Stewart plans to ask Gill how many judges have “recused” themselves – stepped down – from cases in which they have an interest.

Stewart said: “The petitioner put quite an interesting argument forward to say that there’s no real evidence here.

“I mean, how many judges are declaring an interest and recusing during the course of a case? Or are there any judges holding a case in which they’ve got an interest and they’re not declaring an interest?

“Also, lots of other public groups have to have a register of interests – why are judges any different?”

Members of the judiciary, including judges, sheriffs and JPs, adhere to various rules including an oath of office. In his written opposition, Gill said he and his colleagues could be abused by “aggressive media or hostile individuals”.

But the SNP’s Chic Brodie said: “If you want to take out ‘judges’ and put in ‘politicians’, why are they different?”

Last year, we revealed that a judge had been convicted of benefit fraud but his or her identity was kept secret. Cherbi believes that a register would have forced the crooked judge to declare his or her conviction. He was inspired by similar moves in New Zealand which were sparked by a judge failing to declare that he owed money to a lawyer involved in a case.

A register could be created by the Scottish Parliament or by the Judicial Office for Scotland, which incorporates the Lord President’s office. Typically, such registers reveal details of hospitality, gifts, property ownership, shareholdings and personal or financial connections to outside organisations.

Cherbi, from Edinburgh, who campaigns against Scotland’s legal self-regulation and secretive justice, said: “Lord Gill’s style might have worked in 1813 but clearly does not work in 2013.” In a written submission to the committee, Cherbi said: “It is plainly wrong to suggest that, just because someone is a judge, they are above transparency and accountability.”

The Judicial Office for ­Scotland said: “The Lord President has not received any approach from the committee following its consideration of the relevant ­petition, and while the members’ comments are noted it would not be appropriate to comment at this stage.”

Last month, the country’s first Judicial Complaints Reviewer, Moi Ali, accused Gill of blocking access to vital documents. Three years ago, he delivered a damning report on Scotland’s “Victorian” civil courts. That led to last month’s Courts Reform (Scotland) Bill, which it is hoped will make access to justice cheaper and faster.

Lord Gill factfile

BRIAN GILL was raised in Riddrie, Glasgow, and was educated at the fee-paying Jesuit Catholic school St Aloysius’ College. After studying at Glasgow and Edinburgh universities, he became a law lecturer. As a farming law expert, he became a QC in 1981 and a judge 13 years later. He quickly caused controversy by branding Scotland’s civil justice a “relic of a vanished age”. Those views were echoed in his 2009 report which has sparked an overhaul of the civil courts.

The dad of six has featured in many high-profile cases. He let the widow of a lung cancer victim pursue a damages claim against a cigarette firm without putting up a penny in security. He ruled that two gay men could not adopt a handicapped boy. He also rejected a compensation claim over a failed vasectomy. Gill presided over the appeal court’s quashing of the convictions of Tommy Campbell and Joe Steele for the Ice Cream Wars murders.

In 2011, then Cardinal Keith O’Brien presented him with the Papal Knighthood for outstanding service to public life”. Gill has a love of church music and his other interests include children’s and youth charities and architecture.

A MATTER OF TRUST : Scotland’s top judge Lord Gill attacks Scottish Parliament petition calling for a Register of Interests for Scots Judiciary

Lord President Lord Gill branded Scots justice Victorian & unfit for purpose, yet transparency of judges interests seems a step too far. THE SPECTACLE of a country’s most senior judge arguing against public expectations of transparency & accountability in the justice system and indeed public life, makes for an uncomfortable feeling that judges have something to hide. And so, in response to calls for greater transparency of the country’s judiciary, Scotland’s Lord President Lord Brian Gill, the author of the much acclaimed Civil Courts Review which has yet to bear fruit four years on for Scots locked in bitter court disputes, has issued a stern rebuke of a PUBLIC PETITION filed by a law journalist & campaigner calling for a Register of Judicial Interests.

In a sharp letter to MSP members of the Scottish Parliament’s Public Petitions Committee, the Lord President, Lord Gill condemned calls for greater transparency & public accountability of Scotland’s judiciary, and went on to attack proposals calling for judges to declare their interests, financial or pecuniary wealth, and other connections in a publicly available register as “misguided” and “naive”.

Even more worryingly, the Lord President goes so far in his letter to claim transparency across the courts system is not desirable in the form of a registrar of interests, as judges' privacy should be protected to prevent the media or individuals gaining knowledge of judges invariably significant wealth, criminal records, undeclared business connections, work, & wealth earning or otherwise relationships outside and even inside the courtroom.

In a terse, bitter tirade against media investigations into the judiciary which revealed several of Scotland’s judges have criminal records, and one judge convicted of benefits cheating Lord Gill went on to brand those enquiring of judges secrets as “aggressive media” and “hostile individuals”. He also claimed that if a register of interests for judges existed, it may be more difficult to recruit judges in the future.

Given judges must be above reproach, and must uphold the values of transparency & accountability they hold those appearing before them in court, and that decisions taken by the judiciary can have a huge impact on public life, even contesting legislation passed by our elected politicians, can judges who refuse to be held to the same standards as everyone else in public life, be trusted ?

Lord Gill’s letter to the Scottish Parliament in full, is available online here PE1458_B Lord President 05.02.13 or at the Scottish Parliament website HERE (pdf) :

RESPONSE FROM LORD PRESIDENT LORD GILL : PUBLIC PETITION PE1458: REGISTER OF JUDICIAL INTERESTS

Thank you for your letter dated 9 January 2013 in respect of the above. I am firmly of the view that a Register of Judicial Interests is unnecessary and I do not support the terms of the petition.

Is there a practical need for a register of judges' pecuniary interests?

The catalyst for this petition appears to be New Zealand legislation prepared following a case where a judge failed to recuse himself. To my knowledge, no such situation has arisen within my tenure as Lord President. The Council of Europe Group of States against Corruption (GRECO) considered the need for a Judicial Register of interests as part of their First Evaluation Round Report on the United Kingdom dated 14 September 2001' and concluded as follows

"As regards the institutions that are entrusted with the fight against corruption the GET noted that judges in the United Kingdom are not required to register their interests. Given, however, that the United Kingdom judiciary is generally perceived as conforming to social demands for observance of high integrity standards, the GET did not consider it necessary to address a recommendation in this connection." (paragraph 87)

Although yet to be published, I understand that having reconsidered this issue in their Fourth Evaluation Round Report last year, they remain of the view that a register or asset declaration system for members of the Judiciary is unnecessary.

Another reason why there is no practical need for this measure is that there are currently sufficient safeguards to ensure that judicial impartiality is maintained. The current safeguards in place in Scotland are established by the terms of the Judicial Oath, the Statement of Principles of Judicial Ethics for the Scottish Judiciary and the Judiciary and Courts (Scotland) Act 2008. I refer to the SPICe Briefing which details these provisions but would wish to draw the Committee's attention to the following points

* The Judicial Oath, is taken by all judicial office holders, and requires judges to do right to all manner of people without fear or favour, affection or ill-will..

* The Statement of Principles of Judicial Ethics, issued in April 2010, states at principle 5 that all judicial office holders have a general duty to act impartially and,in particular, notes that "Plainly it is not acceptable for a judge to adjudicate upon any matter in which he, or she, or any members of his or her family has a pecuniary interest...".

* The Judiciary and Courts (Scotland) Act 2008 contains provisions in section 28 and section 35 to regulate and investigate the conduct of judicial office holders. The Complaints about the Judiciary (Scotland) Rules 2011 came into force in 2011. To date there have been no substantiated complaints alleging judicial bias. In addition,the Conduct Committee of the Judicial Council intends to consult in the Spring of this year on rules under section 35 in respect of fitness for judicial office in tribunals.

In my view there is no need for the further measure of a "Register of Judicial Pecuniary Interests" as advocated in this petition.

Misconceptions within the petition

The petition appears to proceed on an apparent misconception that equal treatment in terms of disclosure obligations of each of the three branches of Government is desirable. The three branches have significantly different roles to perform. The judicial role requires independence and impartiality in relation to the individual case which the judge has to decide. In this context, the potential for conflict of interest or apparent bias extends beyond pecuniary interests alone. The judge's duty of disclosure is more far-reaching than a bare listing of particular pecuniary interests identified by legislation as warranting disclosure. For example, a judge's disclosure duties, as set out in the Statement of Principles of Judicial Ethics, will extend to material relationships

The petitioner is also incorrect in his assumption that "being obliged to declare pecuniary interests ... would relieve a judge from a repetitive weight of responsibility to make discretionary judgments about his or her personal affairs as each case arises." This is a naive interpretation that does not appreciate the role of a judge. Judicial conflicts of interest based on a judge's pecuniary interests arise infrequently but, when they do, the existence of an entry on a judicial register of pecuniary interests would not relieve the judge concerned from his or her obligations to make full disclosure and to reach a principled decision as to whether recusal is warranted. For that reason, I do not consider that the vehicle that the petitioner proposes would achieve its stated purpose of "providing greater transparency within the judicial system and to avoid any conflict of interest in the judicial role."

Practical considerations

In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.

This is a view shared and supported by the Justices of the Supreme Court who have publicly stated 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 believe to be compete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound and which is now publically available on the UKSC website."

Unintended consequences

The introduction of such a register could also have unintended consequences. Consideration requires to be given to judges' privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.

AS OTHERS SEE IT - A PETITION FOR A REGISTER OF JUDICIAL INTERESTS BACKGROUND :

Petition PE01458: Register of Interests for members of Scotland's judiciary calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand's Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests. Diary of Injustice has featured coverage of the petition in earlier reports, Register of Interests for Judges.

The petition also features references to debate in the Parliament of New Zealand who are considering legislation to create a register of interests for the judiciary. It is time for Scotland to move in the same direction and create a similar register of interests for the judiciary of Scotland and all its members, increasing the transparency of the judiciary and ensuring public confidence in their actions & decisions.

The full details of the New Zealand Register of Pecuniary Interests of Judges Bill, should be looked at for a model of similar legislation in Scotland, can be viewed online here  Register of Pecuniary Interests of Judges Bill.

The New Zealand Law Commission’s discussion paper on a register of judicial interests which recommends further inclusion of court staff in a register of interests, can be downloaded here : NZLC IP21 - Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

In comparison to New Zealand’s effort to ensure transparency in the judiciary, Scotland’s judges and the Scotish Government have, unsurprisingly backed away from any similar measures, even concealing criminal charges and convictions of Scottish judges, where in one case a Scottish judge was charged with fiddling benefits claims, exposed in a Diary of Injustice investigation into Judge’s financial fiddles, here : CAREER CROOKED : Investigation reveals Scottish judges are CONVICTED CRIMINALS, Drunk Drivers,Tax Dodgers & alleged BENEFITS CHEATS

The on-going investigation by Diary of Injustice into members of Scotland’s judiciary has already revealed a series of judges appear to be involved in OFFSHORE TAX AVOIDANCE schemes, associations with convicted criminals & organised crime, prostitution rackets, accepting hospitality & payments from well known corrupt solicitors representing dodgy law firms while others on the bench are engaging in questionable investments & duties which appear to be in conflict with their positions as members of the judiciary. More on these findings can be read in an earlier article here : Offshore trusts, property holdings, insurance syndicates, hospitality from dodgy lawyers, yet no plans for a register of interests for Scottish judges

Law Society’s legislative powerbase 'is anti-consumer' as Holyrood to hear petition calling for repeal of the Solicitors (Scotland) Act 1980

Scottish Parliament’s Petitions Committee to hear petition calling for Law Society to be stripped of its power. LEGISLATION created at Westminster which has given the Law Society of Scotland a right to self-regulate Scotland’s 10,000 plus solicitors for over thirty years, a right which has in the eyes of many been abused to the point the phrase “crooked lawyer” has become common place in Scotland, is now facing a challenge at Holyrood after an online e-petition was filed at the Scottish Parliament calling on MSPs to repeal the Solicitors (Scotland) Act 1980 and end self regulation of Scotland’s legal profession.

The e-petition, filed by a Mr William Burns which is currently open for signatures until 6th January 2011 calls “on the Scottish Parliament to urge the Scottish Government to repeal the Solicitors (Scotland) Act 1980, end self-regulation, and remove the independence of the legal profession, bringing it onside with true democracy.”

To sign the e-petition and learn more about it’s aims, CLICK HERE. Alternatively you can text '421' and your name to 07537 400395 to add your e-signature to this e-petition. (Texts are charged at your standard network rate. Text signatures will not appear instantly.)

Mr Burns, speaking to Diary of Injustice said today : “Every MSP has been provided free of charge a copy of the book “Legal Hell” by Angus M. Brown, a True Story illustrating how self-regulation is incontrovertibly wide open to corruption. This specific matter of policy and a superabundance of other material were submitted to the Justice 1 Committee of the Scottish Parliament between 22 June 2001 and 17 April 2002 for the “Regulation of the Legal Profession Enquiry” and can be found at: Justice 1 Committee Regulation of the Legal Profession Inquiry.”

Mr Burns continued : “My own submissions can be found at No 19 on the page. Representatives of the Law Society presented their own submissions and were also allowed to make lengthy oral presentations, unlike members of the public, creating an unfair imbalance in their favour. Many members went down various avenues to attain justice, but the common stumbling block is the Solicitors (Scotland) Act 1980, which allows the Law Society to protect its members through this self-regulatory legislation.”

A 30 year run of Scots crooked layers may become less frequent if fully independent regulation of Scots legal profession takes place. Any client of a solicitor in Scotland having been put in the unenviable position of having to complain about the legal services provided to them by their legal representatives will be well aware of the problems in trying to pursue complaints against solicitors, while having to deal with the almost unearthly processes employed by the Law Society of Scotland & Scottish Legal Complaints Commission to defeat the aims of consumers who for the most part, used the services of a solicitor expecting a fair deal and access to justice.

Indeed, many clients have come to realise that using Scottish legal services can mean lengthy waits of years for court appearances, common failures to deal with even the simplest of tasks, and the inevitable ‘padded’ and unexplained huge fee demands of solicitors for very little coherent work carried out on their clients behalf.

Forcing the Scottish Parliament to confront the Law Society’s legislative powerbase, the Solicitors (Scotland) Act 1980, which, as many legal insiders admit themselves, allows the Scots legal profession almost a free hand in the world of regulation & political double-dealing, may finally bring changes of increased consumer confidence in what is one of Scotland’s worst performing in terms of public trust, yet highest earning professions which, as the almost compulsory route for access to justice in Scotland, everyone at some stage in their lives must use.

The complaints process operated by both the Law Society of Scotland & SLCC has consistently been described by many involved in it as “Torturous” & “Prejudiced against clients while protective of crooked lawyers”, and the passage in the Scottish Parliament in 2006 of the Legal Profession & Legal Aid (Scotland) Act 2007, which created the Scottish Legal Complaints Commission (SLCC)after a long campaign to reform the legal complaints system, a campaign which involved many consumer campaign groups, organisations, individuals and even the media, has so far done nothing to resolve the intense prejudice consumers & clients face when attempting to secure a fair hearing of complaints they are inevitably forced to make against their solicitor when things go wrong.

The Solicitors (Scotland) Act 1980 established the Law Society of Scotland in terms of legislation, giving it many controversial powers & duties including representing the interests of its solicitor membership and the interests of the public (& client)in relation to the legal profession.

The 1980 act also empowered the Law Society of Scotland to maintain professional indemnity insurance cover and a ‘guarantee fund’ to ‘protect’ solicitors clients from negligent & crooked lawyers. Both schemes, the first known as the “Master Policy”, an insurance scheme run by brokers Marsh UK and backed by insurers Royal Sun Alliance & others, and the “Guarantee Fund”, an in-house compensation scheme managed by the Law Society itself are ultimately famous for their failures to pay out in most cases where solicitors have either stolen or frittered away their clients finances through theft, or their poor quality of work on their client’s behalf.

The Master Policy itself was the subject of an independent investigation carried out during 2009 by the University of Manchester’s Law School, The investigation’s findings linked the insurance arrangements for protecting crooked lawyers to the deaths of clients, while the Guarantee Fund was revealed as little more than a multi million pound masterpiece of claims dodging corruption.

Repealing the 1980 Solicitors Act and the Law Society will bring a fairer deal for public in access to justice & regulation of legal services complaints says petition. The Scottish Parliament’s website gives the following background information in relation to the petition : The action requested in the petition is necessary because, hitherto, decisions have been made by, for example, previous Justice 1 and 2 Committees, loaded in favour of a self-regulated legal profession, detrimental to the best interests of the public. Section 1(3), in particular, of the Solicitors (Scotland) Act 1980 epitomises the limitless scope the Law Society has to protect its members at the expense of the public, which states:

The Society may do anything that is incidental or conducive to the exercise of the functions [i.e., the promotion of- (a) the interests of the solicitors? profession in Scotland; and (b) the interests of the public in relation to that profession] or the attainment of those objects.?

Section 1 of the Act states, verbatim:

1.--(1) The Law Society of Scotland (referred to in this Act as "the Society") shall continue to exist and shall exercise the functions conferred upon it by this Act.

(2) The objects of the Society shall include the promotion of

(a) the interests of the solicitors? profession in Scotland; and

(b) the interests of the public in relation to that profession.

(3) The Society may do anything that is incidental or conducive to the exercise of these functions or the attainment of those objects.

(4) Schedule 1 shall have effect in relation to the Society.

Schedule 1 of the Act, under the heading "Powers", at 10 (e) and (f) state, respectively:

The Society may

(e) accept any gift of property for the purposes of the Society;

(f) accept, hold and administer any gift of property or hold as trustees any property for any purpose which the Society consider to be for the benefit of solicitors in Scotland or their dependants or employees or any substantial body of such solicitors or dependants or employees.

The use of the adverb "anything" in Section 1(3) above is not restrictive and does not limit the application or reference of the term and to what extent the Law Society can and does protect its members at the expense of the public. In fact, the Law Society has a vested interest in protecting its members. This creates a conflict of interest between Sections 1(2a) and 1(2b) because, if the Law Society is to choose who to protect, either a fully paid up licence member of the Society, or Joe Bloggs, their loyalty will naturally, and almost invariably, come down in favour of one of their members.

Furthermore, Schedule 1(10) (e) and (f) could reasonably be viewed as an invitation to prosperous solicitors to proffer gifts, monies or properties to the Society in exchange for quid pro quo favours. This additional bond of fellowship between the Society and its membership does nothing for the confidence of an aggrieved client with a justifiable complaint against a solicitor.

The 1980 Act is, therefore, potentially and actually a distinct conflict of interest. The aforementioned Section and Schedule alone leave the 1980 Act wide open to abuse. Self-regulation in any way shape or guise is the pivotal enemy of any true democracy; therefore any civilised society. It is not only undemocratic it is antidemocratic, anti-society and hostile to a public unconversant with all the nuances of our ambiguously cryptic laws.

There have been no Bills passed or laws enacted since 1980 that does anything to remedy this stark conflict of interest and there have been no recent announcements made by the Scottish Government that might have a bearing on our petition.

My advice ? If you have been forced by the actions of your solicitor or your legal representatives to make a complaint to either the Law Society of Scotland or the Scottish Legal Complaints Commission (SLCC), you may wish to consider signing the petition, and ensure the focus of attention in the debate on self regulation of the legal profession shifts to the legislative power the Law Society of Scotland uses against consumers & clients to preserve itself, preserve its members and preserve its political power to prevent legislative reforms aimed at giving the consumer & client a fair deal.

The Scottish Legal Complaints Commission were asked for comment on the aims of the petition. A spokesperson said "The SLCC has no comment to make about this petition as this time."

No one was available at the Law Society to give comment although a source close to the legal profession said “the Law Society will use any means to fight any attempt to remove its powers of self-regulation.”

A Holyrood insider commenting on the petition said he “could imagine various Directors of the Law Society again preparing their poison pen letters & ‘on the qt’ briefings for MSPs to save their skins once again” which, from my own personal experience with the Petitions Committee is probably what will happen next … so being forewarned, I would advise readers to sign the petition and spread the word !

Lord Hamilton accused of ‘being deluded’ over McKenzie Friends in Scotland as judge's attack on Holyrood petition contradicts courtroom reality

Scotland's Lord President of the courts, Lord Hamilton. SCOTLAND'S CHIEF JUDGE LORD HAMILTON has been accused of "being deluded" over the use of McKenzie Friends in English Courts, and providing “a gravely mistaken account” to the Scottish Parliament's Petitions Committee of the attitudes of Scotland's Courts to unrepresented party litigants who have made requests for assistance in the form of a McKenzie Friend, only to be refused consistently by Sheriffs and even courtroom colleagues of the Lord President himself for a staggering FORTY YEARS while courts in England & Wales have without much trouble allowed McKenzie Friends to operate successfully & diligently over the same four decade period.

Lord Hamilton attacked the petitioner, also challenged the introduction of McKenzie Friends in Scotland. In a bizarre outburst by the Lord President over the use of McKenzie Friends in England & Wales, Lord Hamilton alleged that McKenzie friends sat behind litigants in English courts (rather than in reality, beside them), and then proceeded to attack the member of the public who had raised the petition at the Scottish Parliament, a Mr Stewart MacKenzie, accusing him of failing to understand that Scottish courts had always allowed the use of McKenzie Friends. Amid all this, the Lord President failed to back up his claims with written evidence. Lord Hamilton's letter to the Petitions Committee stated : "As you will be aware, this expression, which owes its origin to English procedure, can be used in two senses : in its original sense it referred to an individual assisting a party litigant by sitting he hind him or her in court and assisting that litigant by making notes, helping with case papers or quietly giving advice on the conduct of the case, as well as providing moral support in court (Civil Courts Review, Chapter 11, para 42).

The Lord President's claim that a McKenzie Friend sat behind the individual they had been called to assist in English courts was quickly rubbished by several institutions in England & Wales.

A group which provides McKenzie Friends to unrepresented parents in need of legal assistance commented : "If Lord Hamilton thinks that a McKenzie Friend sits behind a party litigant he should make the journey south and attend cases where McKenzie Friends are being used successfully in England & Wales. He would plainly see the McKenzie Friend sits next to the litigant and assists them accordingly."

“We have provided qualified individuals acting as McKenzie Friends in hundreds of cases and not once have any been asked to sit behind the person they were there to assist, nor would we add, have any of our McKenzie Friends ever been asked to leave a courtroom.”

An English barrister, asked for reaction on Lord Hamilton's claims, branded the Lord President's letter fantastic & ludicrous. He said : "The Lord President should stick to writing about things he knows about as he plainly does not know about the workings of the English courts system. Lord Hamilton is deluded if he thinks McKenzie Friends sit behind the very litigants they are there to assist."

He continued : "If you think about it for one minute, what judge would allow a litigant to constantly turn around and ask questions, take advice, or be passed notes & papers throughout a hearing ? Having a McKenzie Friend sit anywhere other than next to the person they are there to assist is quite frankly, barmy."

Lord Hamilton then went onto personally attack the petitioner, Mr Stewart Mackenzie's understanding of how Scottish courts deal with McKenzie Friends requests, claiming there was "never any difficulty with such assistance being provided". Lord Hamilton's letter went onto state : "Contrary to the apparent understanding of the petitioner in this petition, the Scottish Courts - certainly the Court of Session, and, I understand, also the Sheriff Courts - have never had any difficulty with such assistance being provided; it is the existing practice of the Court to permit it; there is no need for its "introduction". It is, of course subject to the control of the presiding judge, who, if the facility were being abused, would be entitled to stop it."

However, Lord Hamilton's criticisms of the petitioner, and claims that Scottish Courts allowed the use of McKenzie Friends, were not backed up by a single shred of evidence provided by the Lord President in his letter to the Petitions Committee, and his assertions that courts had no difficulty with the use of McKenzie Friends were even rebuffed by insiders at the Scottish Courts Service, who admitted McKenzie Friends requests made by unrepresented litigants in Scottish courts WERE ROUTINELY REFUSED over the past 40 years to the present day.

Lord Hamilton’s colleague Lord Woolman refused McKenzie Friend days after Lord Gill’s recommendation to allow. To make matters worse for the Lord President's claims to Parliament, a spokeswoman for the Scottish Courts Service admitted when questioned that a second request by an unrepresented party litigant for a McKenzie Friend in a long running damages action being heard in the Court of Session itself, was refused by Lord Hamilton's colleague, Lord Woolman, the day after the Lord Justice Clerk, Lord Gill announced his Civil Courts Review, stating that McKenzie Friends should be introduced to Scottish Courts.

A spokeswoman for the Scottish Courts Service confirmed that : "The request for a McKenzie friend formed one part of a six part motion and was refused. There was no judgment issued nor reason recorded, only the decision."

You can read my earlier report on Lord Gill’s Civil Courts Review, which recommended the implementation of McKenzie Friends in Scotland, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

A senior solicitor from a Glasgow law firm confirmed today that McMenzie Friend requests were usually refused in Scotland, and that life was made as difficult as possible for those making the request.

He said : "It doesn't take much to realise Scottish Courts do not want McKenzie Friends showing up to assist party litigants. Lord Hamilton's claims to the contrary are with respect, aloof from the reality those of us who work at the sharp end in the legal system know to be the case."

He continued : "Anyway, if the Lord President is so convinced Scotland's courts are happy to allow the use of McKenzie Friends, why didn't he provide any details of such instances to the Parliament in his letter ? I think that omission speaks for itself because there are no such examples to give."

Lord Hamilton ‘fears’ English style reforms to Scotland’s Courts. Lord Hamilton continued in his letter to the Petitions Committee, claiming that if similar legislation which has successfully served the rest of the UK for nearly two decades, were introduced in Scotland, it would allow individuals to address the court on behalf of litigants, rather than simply be their McKenzie Friend. Lord Hamilton continued : "In England and Wales matters have, as the Civil Courts Review notices, op cit. been taken further. Section 27(2)(c) of the Courts and Legal Services Act 1990 envisages that a court in England or Wales may - perhaps in furtherance of a pre-existing common law facility - grant a right of audience in relation to particular proceedings . This may be done on a discretionary basis (see izzo v Philip Ross & Co (a firm), [2002] BPIR 310, where it was described by Neiberger J as "an indulgence"). That, if authorised in Scotland, would allow an individual granted such rights to address the court on behalf of the lay litigant. (There are conflicting views in the Outer House as to whether the court has already at common law such a power - see Civil Courts Review, Chapter 11, para 43. There is no Inner House authority in favour of the court having such a power). The Judges of the Court of Session would have no objection in principle to such a discretionary power being available - though the discretion would require to be carefully exercised to avoid disruption to court business and injustice to other parties.”

A retired Sheriff today expressed his dissatisfaction with the tone of Lord Hamilton’s statements on the McKenzie Friends issue, particularly the idea that a McKenzie Friend might, in the words of Lord Hamilton, be asked to sit behind a party litigant in a courtroom.

He said : “While I do not personally recall having any such request made to me for a McKenzie Friend during my time on the bench, I would have found it contrary to the good running of the court and the interests of justice if a party litigant were to be forced to keep turning around to seek consultation with their McKenzie Friend assistant.”

He continued : “I fear that fighting the introduction of something which the Courts in England & Wales appear to have lived with for so long is not in the public interest and I would hope the Parliament and Lord Hamilton can accept the recent recommendations of the Lord Justice Clerk, Lord Gill, to introduce the McKenzie Friend to Scotland as expediently as possible.”

Finally, Lord Hamilton in his letter challenging the "introduction" of McKenzie Friends in Scotland, referred to the recent limited expansion of rights of audience in Scotland, where Section 25 of the Law Reform Miscellaneous Provision) (Scotland) Act 1990, which only came into force in 2007, after 17 years of campaigning for its introduction amid bitter delaying tactics from Scotland's legal establishment, fearing competition from non-lawyers and non Law Society members. Lord Hamilton again failed to mention in his letter to the Scottish Parliament that such ‘fresh’ rights of audience as he referred to, were conferred in a very limited and restricted manner on the Association of Commercial Attorneys, who were forced to agree a practicing certificate limiting the ACA solely to Construction Law cases …

Lord Hamilton concluded : "Fresh rights of audience in Scotland have previously been conferred by primary legislation (see Law Reform Miscellaneous Provision) (Scotland) Act 1990 section 24 ("solicitor advocates") and section 25 )members of professional and other bodies. The judges are of the view that, if an equivalent to section 27(2)(c) of the Courts and Legal Services Act 1990 (or its common law source) is to be recognised in Scotland, this should be done by primary legislation. If that were done, it may be that the exercise of the discretion could be regulated by the rules of court."

If there’s one thing for sure in all of this, it is that “discretion of court” certainly on the issue of McKenzie Friends, cannot be allowed to continue to strangle the rights of unrepresented party litigants of access to justice in Scotland’s courts.

The facility of McKenzie Friends has operated successfully in England & Wales for 40 years, and in many countries around the world, who all mostly treat the request for use of a McKenzie Friend as a Human Rights issue. What we have seen is that in the 40 years since McKenzie Friends have existed in England & Wales, the Scottish Courts have consistently refused to allow litigants to use a McKenzie Friend, demonstrating well enough that Scotland’s courts cannot be trusted on applying discretion in use of McKenzie Friends.

Given 40 long years have rolled by without almost a single McKenzie Friend in Scotland, it now falls to the Scottish Parliament to speak for the people of Scotland, and ensure that unrepresented individuals who cannot access justice simply because they cannot obtain the services of a solicitor, can, within a certain legislative framework which must be respected by the judiciary, apply for the use of a McKenzie Friend to assist their access to justice in Scotland’s courts, when so needed.

You can read my previous articles on the battle to bring McKenzie Friends to Scotland’s courts, here : McKenzie Friends for Scotland and please support the Scottish Parliament petition to bring McKenzie Friends to Scotland’s courts, which you can view here : Petition 1247 : McKenzie Friends for Scotland

Scotland's Chief Judge Lord Hamilton asks Parliament 'to defer' McKenzie Friend petition after Scots wait 39 years for access to justice

Scotland's Lord President Lord Hamilton asked Holyrood 'to defer' McKenzie Friend petition. THIRTY NINE YEARS after the role of a McKenzie Friend was recognised in the English courts, allowing court users south of the border the invaluable assistance of a 'McKenzie Friend' in cases where litigants could not obtain legal representation, Scotland's Lord President Lord Hamilton, has asked the Scottish Parliament 'to defer' the recent McKenzie Friend petition (Petition PE1247) until after the release of the Lord Justice Clerk Lord Gill's review of Scotland's Civil Justice system which is widely expected to make recommendations on introducing the availability of McKenzie Friends to users of Scotland's courts.

Lord Hamilton claims 'the Review will make a recommendation on this matter in its Report’. “Thank you for your letter of 6 May 2009. This asks whether the Court of Session supports the introduction of a "McKenzie Friend" facility and for reasons as to its view. “As it is noted in the Official report of the discussion of the Committee at its meeting on 5 May, this is a matter which is under consideration by the Civil Courts Review under the chairmanship of the Lord Justice Clerk, the Rt Hon Lord Gill. In its consultation paper, the Review asked for views on the following question; "Should a person without a right of audience be entitled to address the court on behalf of a party litigant and, if so, in what circumstances?"

“In light of this we can, I think, reasonably conclude that the Review will make a recommendation on this matter in its Report. I understand the publication of that document to be imminent. In view of this, I do not at this stage wish to express a view as to the position of the Court of Session on the matter. I should instead wish to consider the matter in light of whatever the Review recommends. If the Committee were to decide to defer further consideration of the petition until after the Review has been published, I should be content to respond further at that stage."

However, while the Lord Justice General may be comfortable in asking Holyrood 'to defer' consideration of the McKenzie Friend petition .. most feel that Scots legal rights have been deferred long enough after an outrageous thirty nine year wait for the introduction of the McKenzie Friend facility in Scotland while the rest of the United Kingdom has successfully used the facility to help individuals access to justice.

For one thing, there must now be an explanation as to why Scots have had to wait thirty nine years to exercise the same legal rights the rest of the country has used effectively in resolving legal disputes ... but a legal insider today answered that question very clearly, accusing the Scottish legal profession and the Law Society of Scotland of blocking the introduction of McKenzie Friends to Scotland's courts simply because it would ruin lawyers business and challenge the Law Society’s monopoly on public access to justice.

He said : "The only reason McKenzie Friends have been kept out of Scotland's courts is money, nothing else."

"If you look at the kinds of civil cases in the Scottish courts, up to maybe 30% or even higher of those could be resolved by the litigant appearing themselves, helped by a McKenzie Friend. You don't need to be a rocket scientist to work out that if law firms lost that 30% or more of their business they would not be making as much money as they have done by maintaining a grip on rights of audience in Scotland for forty years."

He went on : "Forget all those arguments about clogging up the courts with people who are unqualified to represent themselves or don't know the law properly. The court is there to serve the public, not itself or the legal profession's requirement for a fast and protracted buck out of the client's purse. People themselves know their own case best, no matter what lawyers might say ... and if you have a party litigant, assisted by a McKenzie Friend, there may well be much speedier resolutions to a lot of low level civil actions which are clogging up Scotland's courts for no reason other than to generate more legal fees for solicitors who are just out to make a profit out of stringing out client’s civil cases for years."

In all likelihood, this statement is true, as most of the significant legal reforms for civil justice, from the small claims limit (held in Scotland at £350 for 17 years while in England it is up to £5,000), to the public’s lack of of choice in legal representation in Scotland (The reforms of the Law Reform 1990 Act held back for 19 years) and now coincidentally we find the rest of the UK has successfully used McKenzie friends for 39 years .. while the legal establishment in Scotland forbade its introduction .. fearing loss of earnings. If you look at Scots rights in civil justice as things currently stand, all the delays of the reforms I have quoted .. and many I have not .. simply boil down to lawyers being concerned they are losing market share (and thereby, profit from legal fees) to people who can perfectly handle their own legal affairs, rather than going to a solicitor to have their legal affairs mishandled .. as is more often the case than not these days.

As readers will know, I reported on the campaign to bring McKenzie Friends to Scotland in previous articles, and efforts to secure a fair hearing for the petition were greatly enhanced by the appearance of Scotland's only independent MSP, Margo MacDonald, speaking on the petition's behalf, also supported by submissions from consumer organisation Which? and law reform campaigners including myself.

You can read my earlier reports on the McKenzie Friend petition here : Battle to bring McKenzie Friends to Scotland continues as Holyrood investigates ‘access to justice’ proposals, also McKenzie Friend proposal gains friends as consumer organisations rally to support petition’s hearing at Scottish Parliament & my initial report on the petition here : 'McKenzie Friend' proposal to Parliament seeks to end 39 years of lawyers monopoly over Scots access to justice

You can watch Margo MacDonald’s testimony to the Scottish Parliament's Petitions Committee here :

Margo MacDonald speaks on behalf of McKenzie Friends Petition to Holyrood.

It is recognised in England & Wales that Human Rights legislation allows litigants to argue for the presence & use of a McKenzie Friend in their case. It is also of significant importance that in the Lord President of the English courts guidance on the use of McKenzie Friends, where the English Lord President specifically states : “When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.” This glaring difference between how the English courts treat the McKenzie friend issue, versus the restrictions in Scotland, raises the possibility the Scottish courts refusal to allow litigants access to the McKenzie Friends has violated the rights of individuals for a considerable number of years.

You can read the full guidance for McKenzie Friends in England & Wales in pdf format, HERE and now we must wait on the ‘imminent’ publication of the Civil Justice Review to see how the issue of rights of representation in Scotland’s courts and the McKenzie Friend question is to be dealt with, and at least in the Chairman of the Review, Lord Gill, we seem to have someone who is forthright enough in his views to advocate change …

Lord Gill has already branded Scotland's Civil Justice system as "Victorian" and in need of reform. Lord Gill, who has chaired the review of Scotland's woefully antiquated civil justice system and who is well known for his forthright views, told a Law Society of Scotland conference that "The civil justice system in Scotland is a Victorian model that has survived by means of periodic piecemeal reforms. But in sustance, its structure and procedures are those of a century and a half ago. It is failing the litigant and, therefore, failing society." You can read more of Lord Gill's comments on the inadequacies of civil justice in Scotland, here : Senior judge hits out at Scotland's 'Victorian' court system and you can download Lord Gill's speech from the Law Society's website (you better download it quickly) here : Lord Gill's speech to Law Society conference (pdf)

You can read more about the Civil Justice Review here : Civil Courts Review

However, Lord Gill’s civil justice review does face a few problems, as the politicians are now realising the scale of his proposals, efforts are being undermined by consumer organisations such as Consumer Focus Scotland, to back up the Lord Justice Clerk’s findings, with a joint Consumer Focus Scotland – Scottish Legal Aid Board survey ruined by elements of the Scottish Government & Scottish Courts Service, restricting the total amount of people questioned to a meagre 35 out of thousands of potential civil court users. I broke this story as an exclusive, earlier, here : Justice Secretary accused of attempt to undermine Lord Gill civil justice review as Government backed survey targets only 35 court users

A source at the Scottish Parliament said today “There will be no delay in the McKenzie Friend Petition as the petitioner himself has already been notified of a new hearing in September. We have to move on, despite the wishes of others not to progress matters which are clearly in the public interest.”

So … McKenzie Friends should, and must, come to Scotland. It is our right. Rather than be second class citizens when it comes to the justice system in Scotland, we should be first class citizens .. and part of being first class citizens with a first class justice system, means taking away the power of the legal profession to dictate who among us has access to justice and who does not. It is everyone’s right to have access to justice and justice will only be done when that is the case.