Friday, November 07, 2014

SECRETARY FOR THE JUDGE: MSPs call in Justice Secretary MacAskill to face questions on proposal to create a register of interests for Scotland’s judiciary

Justice Secretary to face Holyrood Committee on judicial interests plan. SCOTLAND’S Justice Secretary Kenny MacAskill has been summoned to appear before the Scottish Parliament’s Public Petitions Committee and face questions from msps on the creation of a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.
During the committee’s latest meeting, MSPs agreed to call in the Justice Secretary to face questions on the judges interests. MSPs also demanded to see the unredacted 2014 annual report of the Judicial Complaints Reviewer (JCR), Moi Ali – who has since quit the judicial investigator role – comparing it to “window dressing”.
The move to call MacAskill before the Petitions Committee comes after msps in the Scottish Parliament’s main debating chamber last month rounded on Scotland’s top judge, Lord President Lord Brian Gill for refusing to appear at Holyrood and discuss the issue of judicial interests in public. Among those speaking in support of the petition, MSP Neil Findlay condemned Lord Gill’s failure to attend as “an outrage”.
Mr MacAskill previously opposed the creation of a register of judicial interests, however he said in ‘scripted’ letters to the committee it was up to Scotland’s top judge Lord President Lord Brian Gill to create such a register if he was so minded.  Lord Gill fiercely opposes any wider disclosure of judicial interests.
Petition PE1458 – a proposal to increase judicial transparency and submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.
The proposal to create a register of judicial interests is also widely supported in the media, and has the backing of Scotland’s first Judicial Complaints Reviewer, Moi Ali – who gave her support for the petition during an evidence session before MSPs at the Scottish Parliament’s Public Petitions Committee last September, 2013.
However, top judge Lord Gill has waged a bitter two year war against the proposal. The Lord President branded media as “aggressive” and complained court users would end up invading the privacy of judges – who have since been revealed to have criminal records, offshore interests, and investments in companies convicted of bribes, industrial espionage, bid rigging and other offences around the world.
Scottish Ministers are also against the plan to disclose all of the judiciary’s interests. Legal Affairs Minister Roseanna Cunningham attempted to justify the present status quo citing judicial oaths and rules – written by the judges themselves as an adequate safeguard.
The Minister’s input during the October debate at Holyrood had little effect in helping the embattled top judge who is widely seen to have played a flawed hand in refusing to show up before the Petitions Committee to answer questions from politicians.
MSPs who spoke in support of the petition during the October debate on judicial interests were critical of Lord Gill for failing to show up in public. Scottish Labour MSP Neil Findlay condemned Lord Gill’s failure to attend as “an outrage”.
During a speech in support of the proposal to call judges to account for their interests, Mr Findlay said: “.. we should have a register with clear rules that leave no one in any doubt about who and what should be registered. Is it really a surprise to people that the legal establishment does not want such a register, and is it not an outrage that Lord Gill had such contempt for this Parliament that he refused to attend a particular meeting? Does that not make people even more suspicious of his motives?”
Highlighting the fact Gill flew to Qatar for a six day state visit yet refused to show up at Holyrood, MSP John Wilson MSP said of Lord Gill’s non attendance: “Clearly, we must ask why we cannot have a register. No doubt the associated media coverage of Lord Gill’s non-appearance at the Public Petitions Committee has led to him being given the title of Lord No-No. That is not something that I particularly welcome, although, quite frankly, it seems to have a degree of merit for an individual who spent six days in Qatar to give a speech about transparency and judicial regulation that lasted one hour, but who could not find the courtesy to accept an invitation from a mandatory committee of this Parliament.”
Despite opposition from Scottish Ministers and judicial opposition, msps overwhelmingly supported motion S4M-11078 – in the name of Public Petitions Convener David Stewart MSP on petition PE1458 and urged the Scottish Government to give further consideration to a register of interests for judges
A date for MacAskill’s appearance before MSPs is yet to be announced.
Judiciary (Register of Interests) (PE1458)
The Convener: The next 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 submissions.
Members will know that this has been a long, hard-work saga for the committee. I thank all members for their thoughtful contributions in the plenary debate that we had. Mr Cherbi has written to us to suggest that we take careful note of the Judicial Complaints Reviewer’s annual report for 2014 and that we invite Kenny MacAskill to appear before the committee to talk about the judicial oaths issues. It was also argued that we should write to the Lord President seeking an update on changes to the rules on complaints about the judiciary.
There are a few issues for members to look at. I ask for members’ views on whether those suggestions would be acceptable.
Chic Brodie: This saga will not go away. I have a couple of things to say. One is that the JCR has left and, as far as I am aware, no replacement has been announced.
The Convener: I understand that the Government has appointed a new Judicial Complaints Reviewer.
Chic Brodie: That was probably done during the recess.
It is also important that we receive the JCR’s report unexpurgated, so that we can take a definitive view of something that is close to the problem, and we should ensure that the Lord President is encouraged to let us know as soon as possible what changes have been made to the rules on complaints. He will have had the JCR’s report.
The Convener: Do members agree with Peter Cherbi’s suggestion to invite Kenny MacAskill to appear before us?
Members indicated agreement.
The Convener: The other suggestion, which I hope makes sense, is that we get the JCR’s report. We can have that in a written format, as the previous JCR has left. In addition, does the committee agree to write to the Lord President for an update on changes to the rules on complaints about the judiciary?
In fairness, there was a change regarding recusals—instances when a judge decides not to take part in a case because there is some conflict—and there has been a register of them since April. I identified that in my speech in the plenary debate. At the time I spoke, there were 14 instances. There is now a website, which is an improvement. I am glad that the Lord President has taken the issue on board, and that move helps. I do not suggest that it fully satisfies the petitioner, but a move in the right direction is always welcome.
John Wilson: I agree that things have moved in the petition’s direction of travel. I accept your comment, convener, about the fact that the register of recusals is now available on the website, but I would seek the Lord President’s clarification of whether those recusals were voluntary. Judges may still be sitting on cases in which they have an interest.
I would like some clarification. I know of a recent case in which a judge recused herself because she was a member of an organisation from which she was about to hear evidence. As we still do not have a register of interest for judges, is it still very much up to individual judges to decide whether they feel that an interest is relevant and whether to recuse themselves from a case?
The Convener: The Lord President could give you a definitive answer on that. My understanding comes from the discussions that I and Mr Brodie had with the Lord President and from my reading of the website, which contained a list of 14 recusals when I looked at it. Most of those recusals were made because there was a conflict in relation to personal issues—for example, the judge knew a witness. As far as I could see, there were no financial issues involved at all.
I am not sure about any involuntary recusals that have taken place. In all the cases in the list that I saw, the judge had said, “There is a conflict and I do not want to appear in this case.” We might need to get some comments from the Lord President on the matter. I was going to suggest that we invite him to the committee, but we have already covered that subject.
Jackson Carlaw: The recommendations that have been made are appropriate. With reference to the debate, the Law Society of Scotland has subsequently been keen to assure me that any indirect briefing that I may have received that suggested that the society regards this committee as being of any less value than any other committee of the Parliament certainly did not represent its views. I was happy to accept that reassurance, given that the impression might have been created in the debate that the Lord President somehow felt that he would prefer not to appear before this committee because it was not covering weighty matters that required his direct attention. I am happy to be reassured that that is not the Law Society’s view.
The Convener: I am pleased that you have raised that matter and that the Law Society has put those comments to you. They are now on the record.
Are members satisfied with the suggested course of action? First, we will invite Kenny MacAskill to appear before us; secondly, we will get in written form the annual report from the JCR, which we can discuss when it comes before the committee; and, thirdly, we will write to the Lord President seeking an update on changes to the rules on complaints about the judiciary. In particular, we will highlight John Wilson’s point about involuntary recusals, in which a judge does not wish to raise a matter but is approached about not taking the case.
Chic Brodie: I want to come back to the JCR’s report. I am not suggesting that anything wrong has been done. However, given the strength of the incumbent’s view regarding the register of interests, it is important that we see the naked report in order to get a true evaluation of whether anything has moved on.
The Convener: Yes.
Angus MacDonald: Is there a deadline by which the report is due? According to the petitioner’s letter, it is due soon.
The Convener: My assumption is that it is almost upon us. The previous JCR has completed her term of office, so I assume that the work in 2014 of which she has been a part will be available very soon. We will ask the clerks to chase it up.
John Wilson: I also ask the clerks, in chasing it up, to get clarification of when the JCR’s report was submitted to the Lord President. My understanding is that the report may be on the desk of the Lord President at present. Given that the JCR gave up her post during the summer, it would be interesting to find out when the report will be released.
The Convener: That is a good point—thank you. Do members agree with that course of action?
Members indicated agreement.
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

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