Tuesday, December 02, 2014

PUBLISH AND BE JUDGED: Judicial backslapping in the dock as Scottish Government hold back publication of 2014 Judicial Complaints Reviewer annual report

Report on judges still not handed to MSPs investigating judicial interests. A MONTH after Scottish Parliament MSPs investigating judicial interests demanded to see an unreacted report detailing complaints against judges, the Scottish Government have still not handed over the document to Parliament nor have Scottish Ministers published what is the last annual report of Scotland’s first Judicial Complaints Reviewer (JCR), Moi Ali. MSPs are seeking the report in their consideration of proposals to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary
The report, which has been with the Scottish Government and Scotland’s top judge – the Lord President Lord Brian Gill ‘for some time’, covers the final term of popular JCR, Moi Ali, who stood down in the summer of 2014 after telling MSPs her role was little more than “Window Dressing”. Ms Ali also revealed in an evidence session before MSPs at the Scottish Parliament’s Public Petitions Committee the lack of cooperation she encountered from top judge Lord Gill, who himself decides how to handle complaints against his own colleagues.
Speaking earlier today, a legal insider suggested the Scottish Government did not want to release the JCR’s report before Legal Affairs Minister Paul Wheelhouse attended the Public Petitions Committee next week on 9 December, in an effort to keep any potential probing questions on judicial conduct and failures to a minimum.
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.
Following a series of ‘scripted’ letters from Scotland’s top judge – who refused three invitations to appear before MSPs to answer questions on his opposition to the creation of a register of his colleagues vast personal wealth, Scottish Ministers have also made clear Government objections to the transparency proposal. However, a lively debate on judicial interests in the Scottish Parliament’s main chamber on Thursday 7 October 2014 saw cross party support for the proposal, with msps overwhelmingly supporting motion S4M-11078 – in the name of Public Petitions Convener David Stewart MSP on petition PE1458, urging the Scottish Government to give further consideration to a register of interests for judges.
The call to create a register of judicial interests is widely supported in the media, and also has the backing of former Judicial Complaints Reviewer, Moi Ali. The evidence session with Moi Ali & Petitions Committee MSPs can be viewed in the following video footage:
The full transcript of the September 2013 evidence session with JCR Moi Ali and MSPs was published by Diary of Injustice here: Evidence from Scotland’s Judicial Complaints Reviewer Moi Ali to Public Petitions Committee on Petition 1458 Register of Interests for Scotland’s Judiciary
Earlier this year while still in the post of Judicial Complaints Reviewer, Moi Ali wrote to MSPs on the Scottish Parliament’s Public Petitions Committee reiterating her support for a register of judicial interests. The JCR gave msps further insight into judicial complaints and explained why increased transparency must be introduced to Scotland’s overly secretive judiciary:

Judicial Complaints Reviewer evidence to MSPs on register of judicial interests: I understand that the Committee is due to consider this petition again shortly. In view of this, and in response to the Cabinet Secretary’s letter of 22nd April 2014, this is an opportune time to pull together the reasons why the Judicial Complaints Reviewer believes that a register of interests for the judiciary is essential.
I write not from the viewpoint of the judiciary, who have a vested interest in this issue. I write from the perspective of the Scottish public. I write not on behalf of those who hand down justice, but those who are on the receiving end. It is important that their voice is heard. They have a right to know that justice is being done, an essential component of which is that it is seen to be done. A register of interests is a tangible way of showing that justice is being done.

I think it likely that the number of complaints against the judiciary would fall were there to be a published register of interest for judicial office holders. I have received complaints about perceived conflicts of interest that have come to light after court proceedings. A register of interests would allow issues to be dealt with at the time, thus averting the need for a complaint. That would be good for the judiciary and for the public.

The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime. They may be women who want protection from abusing partners, fathers who want access to their children, or people whose home is at stake due to various legal or family wrangles. People going through the court system face stress and anxiety, perhaps financial pressures, and fear about the future. Their perspective is important and must be a consideration in this matter.

Given the position of power held by the judiciary, it is essential not only that they have absolute integrity but crucially, that they are seen to have absolute integrity. Again, a register of interests is a way of demonstrating that a judicial office holder is impartial and has no vested interest in a case –financially, through family connections, club/society membership or in any other way. Conversely, the refusal to institute a register of interests creates suspicion that in turn undermines judicial credibility. So once more, a register of interests is good for the judiciary and good for the public.

The Cabinet Secretary for Justice states that there are sufficient safeguards already in place, citing the complaints rules as one of these safeguards. As the person appointed by the Cabinet Secretary to review complaints handled under these rules, I can say from experience over nearly three years that the rules are not fit for purpose. I have attached a document I prepared in December 2013, following consultation with members of the public who had made complaints under these rules, to support this assertion.

The Judicial Office’s published statistics demonstrate either that judicial conduct is exemplary, and the public vexatious or unable to understand the rules; or they show that the rules are not fit for purpose. I suggest that it is the latter. For the first year in which the Rules were operational(a 13-month period to 31st March 2012), 107 conduct complaints were made to the Judicial Office and 98 were completed during that year. With one exception, all of them were dismissed without investigation. Only one investigation was carried out, following which the complaint was dismissed as “unsubstantiated”.

The latest statistics have yet to be published, but year two figures (to March 31st 2013) show that 114 complaints were made (plus the 9 carried over from year 1). Of 116 concluded during the year, only 11 were investigated. Four of the 11 were still underway at year-end, meaning that 7 investigations were completed in Year 2. Of the 7, one was withdrawn; 2 resolved informally; and 4 were reported to the Lord President. Of the 4 reported to the Lord President, 3 were deemed to be without substance, unsubstantiated or vexatious. For the one remaining complaint, an apology was offered by the judicial office holder and the Lord President deemed that no further action was required.

In summary, in the first 25 months of the new complaints regime, the Judicial Office’s published statistics show that of 221 complaints there were 12 investigations, one judicial office holder apologised for his or her conduct and no judicial office holders were disciplined.

My experience in this office leads me to the conclusion that the rules are not a sufficient safeguard. But even if they were, particularly when combined with the judicial oath and the Statement of Principles of Judicial Ethics, why not go further in enhancing transparency and accountability?

There are sufficient safeguards in place to prevent members of public boards from acting inappropriately –such as robust audit committees, external scrutiny and regulation, board meetings held in public and a rigorous appointments process. Nevertheless, such members are still required –and rightly so –to complete a publicly accessible register of interests in order to demonstrate transparency and accountability. It is right that public appointees and elected politicians are required to do this, and it is also right that the judiciary should too. Registers of interest are the norm now and the judiciary is out of step with standard practice. This undermines their standing with the public.

For all of the above reasons, it is in the interests both of the judiciary and of the public for there to be a register of interests.

I have been frank about my views in this letter, and I hope that I have not given the impression that I do not have a great deal of respect for the judiciary and the difficult work that they undertake for the greater good of society. Their work is essential, their independence vital. An independent judiciary underpins a civilised society. But with independence goes accountability, and a register of interests is a mechanism for enhancing accountability.

I will be standing down from my role as JCR in the summer, but until that time I am happy to provide further information to the committee if that would be helpful.

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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