New Petitions
A Sunshine Act for Scotland (PE1493)
The next item of business is consideration of two new petitions. As previously agreed, the committee will take evidence on both petitions.
PE1493, by Peter John Gordon, is on a sunshine act for Scotland. Members have a note by the clerk, the Scottish Parliament information centre briefing, the petition and the submission from the Association of the British Pharmaceutical Industry.
Welcome, Mr Gordon. Thank you for coming along. We are running a little bit early, so I appreciate your being on time. I invite you to make a short presentation of no more than five minutes, and we will then kick off with some questions.
Thank you. I am here to present a petition that calls on the Scottish Parliament to urge the Scottish Government to implement a sunshine act that makes it mandatory for all payments, gifts and hospitality from the manufacturers of drugs, nutritional supplements, medical devices and healthcare technology to NHS Scotland healthcare workers to be reported and logged and for the information to be kept in a public, open database. The database should also include all sponsored education of healthcare workers and managers and should quantify the sums of money, or the cash equivalent of payments in kind, that are involved. I believe that the Scottish Government could lead the way in the UK on the issue.
I will give a bit of background. My son has had type 1 diabetes since the age of 12 and is on insulin. I am very much an evidence-based doctor, and with reference to that I want to make it clear that I fully support the pharmaceutical industry. Indeed, one of Scotland’s undeclared heroes is Dr Macleod, the co-inventor of insulin, who got the Nobel prize in 1923. Another of our great scientists and one of my heroes is James Clerk Maxwell, without whom we would not be able to communicate in the way that we do today.
Conflicts of interest feature daily in the news and occur in many different areas, as we all know, and healthcare should not see itself as immune from them. In the 1970s, the academic Robert K Merton commented on the loss of disinterestedness, and it has become a much-discussed problem in scientific journals. He was interested in the ways in which the cultural structure of science guarantees scientific objectivity. My main point today is that I believe in evidence-based science and I want it to be as objective as possible. Disinterestedness is the assumption that scientists are not influenced by personal material gain and that their reward lies in recognition by their peers. I suggest that the situation has changed significantly in the past few decades.
I have been looking at the area for a few years now, and I have been confused about what regulations and guidance exist. When I initially contacted the Scottish Government, I was told that NHS boards should follow “A Common Understanding 2012—Working Together For Patients: Guidance on Joint Working between NHSScotland and the Pharmaceutical Industry”. However, that document, which I was forwarded by the Scottish Government, makes it clear that it excludes research, procurement and sponsorship. It therefore excludes quite a lot. Within the document, the reader is directed to NHS circular MEL—management executive letter—48 of 1994, entitled “Standards of Business Conduct for NHS Staff”, which is 20 years old.
10:30
I wrote again to the Government and on 31 October I had a helpful reply from Cabinet Secretary for Health and Wellbeing, who told me:
“HDL (2003) 62 made it clear that all Health Boards should establish a register of interest for all NHS employees”.
The key word there is “should”.
Here we have two pieces of guidance, one of which is 20 years old—pre-devolution—and one of which is 10 years old.
Alex Neil went on to say:
“In addition, healthcare professionals will continue to be bound by the codes and standards of their regulators and professions.”
The current Scottish appraisal form for consultants and doctors asks doctors to confirm annually that they have
“complied with the conflict of interest mechanisms of the Boards”
within which they work.
That leads me to the research that I have done using the freedom of information legislation. I found that none of the 22 NHS boards in Scotland has a completely open-access, routinely populated, central register for recording interests as per the guidance in a health department letter of 10 years ago. A few boards have a register but completion is patchy. The board closest to the request in HDL (2003) 62 stated that
“the information is not routinely collated”.
The rest of the boards do not have routine collation of the details either. Basically, we do not know which doctor gets paid what, and there is no way of finding out.
Last year, for the first time, it was revealed that, throughout the UK, £40 million was paid to healthcare workers by the pharmaceutical industry. It has been estimated that £4 million of that was paid to Scottish healthcare workers. That does not seem to appear in the existing registers in Scotland.
My concern, as an evidence-based doctor, is about maximising benefit and minimising harm; my concern is also that resources should go where they are most needed in medical care.
I will finish on harm.
“I think the scale of this might slightly amaze you”.
That is a quote from Dr Ben Goldacre.
A recent report in the British Medical Journal said:
“Three quarters of guideline panellists have ties to the drug industry”.
A recent study by the ethical standards in health and life sciences group concluded that
“89% of 1056 respondents agreed that payments to individually named healthcare professionals by companies should be transparent”.
That is important, because much of the continuing medical education in the UK and Scotland is led by key opinion leaders. I became interested in the issue through working with our vulnerable elders in the area of dementia.
The United States has a sunshine act, and France and Australia seem set to follow.
Harm comes from the misleading promotion of continuing medical education and products. My wife and I, who have both been NHS medical practitioners for 20 years, went through the British national formulary for examples of misleading drug marketing where the potential for harm was underestimated. In every chapter, we found obvious examples. That is the result of marketing education—rather than scientific objectivity—where benefits are maximised and harm is not fully represented. The sum of £4 million may not seem a lot in relation to the budget for medicines. However, given the inverse care law, if we are seeing repeated examples of harm, those who most need it will not get the treatment that they should be getting, based on objective science.
It is important that I conclude with a few examples. I wanted to cover all areas, and while my area of expertise is in psychiatry, particularly in relation to our elderly, my wife is a general practitioner.
Each of these is an example of where a drug has been promoted through the involvement of the pharmaceutical industry, with the benefits being promoted first and the harms having appeared later.
Chapter 1 of the BNF is on gastrointestinal disorders. Cisapride was most commonly used for gastro-oesophageal reflux, including in infants. It was withdrawn from the market in 2000 because of the risk of cardiac arrhythmia.
Chapter 2 deals with cardiovascular issues. There is a very recent example. The new oral anticoagulants are said to be safer than warfarin. Extra warnings have now been issued as the drugs still increase the risk of bleeding and, unlike warfarin, have no antidote.
Chapter 4 is on issues of the central nervous system. There are so many examples that it would be impossible to list them all. They include paroxetine, reboxetine and pregabalin. Pregabalin is a painkiller that has been widely promoted, with big awareness campaigns and lots of educational meetings about neuropathic pain. These drugs are now commonly sought for abuse.
I am just about finished, convener. In relation to chapter 5, overuse of antibiotics and appropriate use of antibiotics might well be another area where there is an issue. Most people will probably be aware of the debate on Tamiflu, which shortens any influenza illness by only half a day and probably risks making people sick. Huge quantities of unpublished data on that have still not been released.
Chapter 6 is on the endocrine system. On glitazones for diabetes, there has been a marked number of educational meetings. However, their use has now declined, because of the association of glitazones with heart failure and bladder cancer. On hormone replacement therapy, when long-term studies demonstrated that its proposed cardiovascular benefits appeared in fact to be harms, marketing of the products virtually disappeared overnight. The marketing bill for the pharmaceutical industry is twice the amount that it spends on innovation.
I have just three more examples, convener. Chapter 7 is on obstetrics and gynaecology. I have come across oxybutynin, which is used for urinary frequency and incontinence but which has now been shown to have a risk of cognitive impairment, especially in the elderly, and that fact is now being used as the basis for marketing other, newer still-under-patent drugs of the same class.
The drug Vioxx was used for musculoskeletal and joint disease but was withdrawn from the market. Following that, a rival firm was quick to push its product Celebrex, although significant warnings are now attached to its use. That class of drugs was marketed as causing fewer gastrointestinal side-effects than older drugs, but they had increased cardiovascular risks. The scandal that arose because trials had shown that to be the case but were not published led to the first steps towards the sunshine act in the USA.
I will finish there. I am absolutely not arguing that we should outlaw conflicts of interest, which are part of life; I am arguing that we should insist on transparency. I believe that sunshine is a powerful disinfectant. There are a number of ways that we can go about this, but Scotland could lead the way by introducing a sunshine act.
Thanks for your evidence, Dr Gordon. You mentioned important international examples from places such as America. Will you say a little bit more about those and what lessons we in Scotland can perhaps learn from them?
I am definitely not an expert on that, but I am aware that, since August this year, America has implemented a sunshine act. Stories are now emerging online, because it is now mandatory that payments to doctors, particularly key opinion leaders, are published in an open-access database. Indeed, anybody can look that up on the “Dollars for Docs” website. The amount of money that is involved is staggering. That applies not to healthcare professionals across the board but to a number of individuals who are targeted as key opinion leaders and who are paid significant sums. If we follow the stories on each of those key opinion leaders, we find that, although there are benefits from the medication concerned, there has been underreporting of the harms.
To return to Scotland, the main issue is that sponsorship by the pharmaceutical industry is the mainstay of continuing medical education once people have graduated as doctors. The medical profession has the notion that we can be more objective and rise above the potential for marketing, but I argue that scientific objectivity should be presented first and all that data should be available. We should know about the conflicts of interest. Those should be open and it should be mandatory to record them annually. We need action on several levels, and not just a sunshine act. We also hope to convince the General Medical Council that the issue could be a regular part of its appraisal system so that doctors record any payments or sponsored education of any sort.
You will know that, under UK legislation, the Bribery Act 2010 makes it an offence to take bribes in return for services of any sort in public service or anywhere else. This is a hard question to answer, but are you suggesting that there are breaches of that act in the NHS in Scotland because of the interaction between pharmacy companies and doctors across the board in Scotland?
No, I am not suggesting that, and I do not know much about that act. I am merely commenting that the evidence in recent freedom of information returns from all 22 NHS boards in Scotland is that transparency is talked about but is just not happening.
In your introductory remarks, you referred to marketing budgets compared with research and development budgets, and you have just talked about sponsorship issues. How do you envisage our creating legislation that can separate out the legitimate marketing of a drug, the research undertaken to make that drug suitable for use and sponsorship?
That is a good question. It would be relatively straightforward; indeed, I am surprised that it has not happened already. We just need an open, central register on which payments from the pharmaceutical industry are recorded. We all understand that conflicts of interest go far wider, but such a register would be the starting point. America has decided that that is the right route and the fact that France and Australia are considering it too says a lot.
I have a copy of the ABPI’s helpful reply to the committee, but we cannot rely totally on outside agencies ensuring that a register is set up. The letter provides a lot of information on a European disclosure code but, having read it, I am not convinced that that will meet the standards of a sunshine act. We need the sunshine act as the background; we also need the GMC to regulate across the UK to ensure that an open register is used. That would be good for us all.
We could tackle the inverse care law by ensuring that our medical prescribing resources go to those who most need them. We have so many lessons on overprescribing from history—even in my short time in medicine. I believe in the use of antidepressants and antipsychotic medications, but I want them prescribed appropriately to those who are most in need, and the risk is that that will not happen if education is marketed. The benefits are presented while the harms are not, and usually there is a combination of those.
You have made an interesting point about what market-led educational opportunities there may be in the industry. There is an indication that the drugs that are in most common use may be the ones that sell better through the marketing, training and other facilities that are available to doctors.
You have indicated that you do not think that the recommendations in the ABPI submission go far enough. Do you think that a register should be kept by NHS boards or NHS Scotland? Do you envisage a crossover between two registers, given that the European pharmaceutical industry is talking about setting up a register? Do you envisage any such register that is kept by the pharmaceutical industry being tied into any register that is kept by NHS boards or NHS Scotland?
That is a good question. We should have both. MEL 48 has been around for 20 years, so it is pre-devolution. It says that NHS boards should have a hospitality register, but they do not. That letter was issued two decades ago. Just recently, the Scottish Government finally confirmed to me the existence of another piece of guidance—HDL (2003) 62, which is headed “A Common Understanding”. That health department letter was issued 10 years ago but we still do not have functioning hospitality registers. That is shocking.
NHS boards should be working with the pharmaceutical industry now. Any moves towards a national collective database can happen in addition to that. I do not see any problem with that.
You mentioned the role of the medical profession. An issue that has come up recently is that, after GPs prescribe a drug and the patient takes the prescription along to a pharmacist, the pharmacist can change the prescribed drug to one that is similar but which is made by a different manufacturer. Do you envisage the inclusion of pharmacists in the register?
Not at this stage. The register that I envisaged was only for NHS healthcare workers. However, it needs to apply across the board, so you make a good point.
Good morning, Mr Gordon. Firstly, you listed some drugs in your opening statement. I take it those are all Scottish Medicines Consortium and National Institute for Health and Care Excellence approved products.
Yes.
We need to be careful. You made suggestions about those drugs that I do not think the committee should, in accepting your evidence, say that we are endorsing, because to do so would be inappropriate.
A register is coming from the pharmaceutical industry. What do you envisage would be the cost of your proposed register?
I am just a doctor; I do not know about costs.
Have you given thought to how the register would operate? Who would sustain and be responsible for it? What penalties would apply? Last week, for example, we had the Scottish health awards. Tables were hosted and nurses and other healthcare workers were rewarded. Would everybody who had been at a table be required to register that they had been hosted by, for example, a pharmaceutical company? Is that the level of detail and the range of inclusion that you are looking for? You talk of all healthcare workers having to record any example of hospitality.
10:45
The starting point is just payment or payment in kind. I think that that is relatively straightforward, not controversial, and in the spirit of transparency and objectivity.
It is, but if somebody does not act in that spirit, there must be some sort of police force that is responsible and some form of inquiry into why they did not, and then some form of redress or penalty. All that could become a considerable additional burden. I wonder whether, in having something so all embracing, we would create something of a sledgehammer that could become an expensive and bureaucratic nightmare. That is my experience of such initiatives generally, but especially of those in the NHS.
How come in the Houses of Parliament scandal about payments transparency was seen as—
Yes, but that was for 600 people. We are talking about tens of thousands of people in the health service in Scotland. The scale of what is proposed is way beyond the monitoring of 129 MSPs or 600 MPs. You propose a very much broader register.
Absolutely. The potential for harm is significant, as has historically been shown by repeated overprescribing of medications, which has caused a lot of harm and has diverted resource away from people who need it. I do not see why you think the introduction of a register would be a problem.
I am trying to define it. There is an issue about overprescribing, but it seems to me that the register that you propose would reach way beyond any potential conflict of interests to go much wider.
No. I do not accept your argument at all.
You did accept it; you said that any nurse who had been at the event last week would have to register on a website that they had been there.
No. I make it very clear in my petition what I am asking for, which is for payments to be recorded. America has accepted that that is the right way forward.
America has an entirely different health service; it does not have a national health service.
Are you defending the fact that, although there is guidance from 10 and 20 years ago, we still have no properly functioning hospitality register? Surely that would be a very easy thing to implement that would not be very costly.
You say “surely”, but you actually do not know.
Yes, but it is part of Government guidance.
There was a bit of a fuss in the press recently about an issue that was identified in the health service in England relating to GPs’ prescribing generic products. It appeared that the health service was picking up a very considerable additional bill because of marketing by pharmaceutical companies that resulted in GPs promoting particular products despite there being alternatives at much lower costs. I am slightly confused, because my understanding is that GPs are self-employed and so are not employed by the NHS. Does that mean that the register that you propose would not cover GPs?
The register that I propose is about continuing medical education. The payments to doctors as key opinion leaders can amount to considerable amounts of money, as is also the case for training, lectures and sponsored symposia. I understand that the GMC takes the matter very seriously and is considering implementing registering on a regular basis. I am not a financial expert, but I do not see a register as being a difficult thing to produce. I understand that the range of guidelines needs to be clear about what has to be declared and what does not, but the implementation of a register would not be difficult.
I am trying to establish whether I am right that GPs are not employed by the NHS.
I think that GPs are employed by the NHS, but as private contractors. I am not an expert on that, though.
So, would a register cover GPs?
We would need to confirm that.
No other member wishes to ask questions of Dr Gordon, so I ask him to stay here while we move to the next stage, which is to decide where the petition should go. Members will note that the clerk’s paper mentions two options. The first is to seek further information on the petition’s proposal from, for example, the Scottish Government, the British Medical Association and the ethical standards in health and life sciences group, and the second is to take any other action that members feel would be appropriate. Can I have recommendations from members?
We should continue the petition. As well as the Scottish Government, the British Medical Association and the ethical standards in health and life sciences group, we should contact the Royal College of Nursing, the GMC, which has been mentioned, NHS Scotland, possibly one or two health boards, and Unison, to find out their views on such a register being introduced and applied to the medical profession in Scotland.
I, too, think that we should continue the petition. It raises some interesting issues. International comparisons have been drawn to our attention, and by some means I would like to know a little bit more about how they operate, the costs and the circumstances that led to their introduction. If we are drawing parallels with them, we ought to do that on an informed basis, so I would find that information useful.
That is an excellent point. I am sure that our colleagues in the Scottish Parliament information centre can provide some research for us for a future meeting.
I also wonder whether, on this issue, we should write to the Department of Health in England. The issues there will be similar, so it would be useful to have any information that it has and to know about any investigation that it has done, which might also inform our view.
Thank you for that.
Should we write to pharmaceutical companies, chemists and pharmacies?
We have a submission from the Association of the British Pharmaceutical Industry. Do you wish something more than that?
Given the evidence that we have heard today, yes I do.
Okay. As no other members wish to contribute, are members happy with the course of action that Jackson Carlaw and John Wilson have suggested?
Members indicated agreement.
Thank you for that. As you have heard, Dr Gordon, we will continue the petition on the terms that John Wilson and Jackson Carlaw suggested, and we will keep you up to date with developments. Thank you for coming along. We will let you know how the petition goes in the longer term.
10:52
Meeting suspended.
10:53
On resuming—
Secret Society Membership (Declaration) (PE1491)
Our second new petition today is PE1491, by Tom Minogue, on the declaration by decision makers of secret society membership. Members have a note by the clerk, the SPICe briefing, the petition and a letter from the Grand Lodge of Antient, Free and Accepted Masons of Scotland. The previous petitioners who are referred to in the clerk’s note and the SPICe briefing are Sidney Gallagher, who lodged PE693, William Burns, who lodged PE652, and Tom Minogue, who lodged PE306.
I welcome Tom Minogue and thank him for coming along. Also with us is Peter Stewart-Blacker, who is the convener of Accountability Scotland. Thank you for coming along as well, Mr Stewart-Blacker. If you want to intervene at any time, please indicate that to me and we will be happy to hear your views. Mr Minogue, we would appreciate a short presentation of a maximum of five minutes.
I ask the committee to take the SPICe briefing with a pinch of salt because it is misleading and does not tell half the story. That might not be the fault of those who compiled it, as the Parliament’s archives are not very helpful to researchers.
For a start, the Speculative Society of Edinburgh was reported in the Parliament in 2002 and was not brought to the public’s attention by Robbie the Pict in 2003. The all-male Spec’s domination of the judiciary was raised by me in Parliament by way of a written submission in 2002. You would not know that from the Parliament’s summary of PE306, but the Official Report of the Justice 2 Committee’s meeting of 30 October 2002 records it, and you can see it on my blog.
It is a sad fact that I can follow public petitions from 1817 but not those from 2003. In the internet age, that is ridiculous. At the click of a mouse, I can access every issue of The Scotsman and The Glasgow Herald back to March 1817 and read, for example, about a petition by the borough of Rutherglen to the Westminster Parliament that proposed electoral reforms and opposed the Government’s suspension of habeas corpus, but I cannot readily find out what happened to my petition on 4 March 2003.
On that day, Jim Wallace killed off my petition. When he gave evidence to the Justice 2 Committee, he said:
“Mr Minogue is almost unique.”—[Official Report, Justice 2 Committee, 4 March 2003; c 2589.]
The claim that I was the only one with a concern about undeclared freemasonry in the judiciary was astonishing given that it was made at a time when the UK Government insisted on knowing, as a condition of employment, the masonic membership status of new judges in England and Wales, and when Norway had similar rules. In effect, the justice minister was saying that public concern about judges’ masonic membership hit the buffers at Berwick-on-Tweed and the east coast ports.
The SPICe briefing is not even handed. It features two cases in which the United Grand Lodge of England threatened to cite for judicial review of the judges’ masonic registration regulation in England and Wales. The two Italian cases were never tested in the UK courts and are not relevant to my petition, yet SPICe features them while ignoring and omitting to show a Scottish case that is absolutely relevant to my petition—a case in which a social security commissioner upheld the appeal of a Dundee claimant who demanded to know whether he was being assessed by masonic decision makers. The commissioner held that, under article 6 of the European convention on human rights, the claimant had the right to ask.
Two spurious Italian cases are featured by SPICe while a highly relevant Scottish case is suppressed. I say “suppressed” because SPICe alludes to it, albeit obliquely, as
“additional evidence”
that
“the Committee declined to publish”.
You might ask why the publishing was censored. The Dundee case is a publicly reported one that was discussed with the then justice minister on 4 March 2003 in connection with my petition, but you would need to be a super-sleuth—a modern-day Sherlock Holmes—to find it in the Parliament’s archives.
To conclude, I ask the committee to look at my petition afresh and judge it on its merits. In my opinion, that should be done by way of forensic research and examination involving academics and should not rely solely on those with vested interests—judges and politicians—who, for whatever reason, might want to gloss over the issue. Jack Straw was such a politician. In an election manifesto, he promised a register of freemason judges and was instrumental in introducing it, but as Home Secretary in 2009—not in 2007, as SPICe reports—he did a U-turn and scrapped it. With an election looming and his party trailing in the polls, he sought to gain ground by bribing the masonic voter.
I ask the committee to follow the example of Scottish politician John McAllion, the Public Petitions Committee’s first convener, who boasted that his committee never met in private. That is as it should be. He was true to the promise that the Scottish Parliament would be open and accountable.
Too often, I watch video coverage of committee meetings at which the members rubber-stamp briefing papers that have been prepared by bureaucrats or arrive at conclusions that are the result of private meetings. Some committees remind me of television cookery programmes in which celebrity chefs produce a perfectly cooked dish with the comment, “Here’s one I prepared earlier.” Faits accomplis appear where the public has seen no due process, and that is simply wrong. Future generations should be able to examine every step of the petitions process, just as I can read the archives of The Scotsman and follow those petitions from 1817 that supported the blanketeers and the Hampden clubs.
Thank you, Mr Minogue. For the record, I stress that we invited you along today because we want to hear about the merits of the petition. You are here so that we can examine your petition and look at the next steps.
I think that I speak on behalf of the committee when I say that we have always been keen to go the extra mile with every petitioner. You will know that we considered a similar petition involving the registration of judges’ interests. You might have seen some press coverage of that.
I have followed it closely.
That has resulted in the deputy convener and I meeting the Lord President in a week or so. We are not discussing anything in private. Everything that we do is open, which is why you are here with your colleague. I am delighted that you are here and I wanted to make sure that all that is on the record.
11:00
I would clarify, convener, that my remarks were predicated on my experience of other committees. I watched your committee, particularly Jackson Carlaw, when you talked about Lord Gill’s refusal to attend, and I was very impressed with that. You are certainly thorough. I was basing my remarks on my experience of other committees.
I want to ask why there is an additional submission to my petition from the Grand Lodge of Antient, Free and Accepted Masons of Scotland. When I accepted the committee’s invitation, I included additional information from the Domstol—the Norwegian court service—and an article from the political editor of The Guardian, but they do not appear.
It might be useful if I ask some questions about your current petition and then allow my colleagues to come in. Although I totally understand that you wish to air some issues about the past—you have done that very ably—our job is to look at the current position. We are not responsible for what happened in the past, but we are keen to explore your petition.
You touched on one of my questions when you mentioned the situation in England and Wales, where there was a register from 1998 to 2009. As I understand it, that involved judges, the police, prison staff and probation officers, which is quite interesting. They were asked to declare whether they were freemasons. Have you been able to analyse the results of that? The register operated for a fair length of time. Have you looked at any academic evidence that has analysed how effectively the register operated? I have picked up from the equivalent of the Crown Office that there were a lot of nil returns, which was an issue. I am partly answering my own question, but I wanted to raise that point. Perhaps you can give me your views on the register, Mr Minogue.
As you say, there was a problem in the lack of co-operation, particularly from the United Grand Lodge of England and the judges themselves. In its overall conclusions, the second report of the Home Affairs Committee said that between 5 and 10 per cent of the professional judiciary in England had declared masonic membership.
If we extrapolate that figure to Scotland, which has the highest per capita masonic membership in the world—it is more than four times as high as in England—we could be looking at between 22 and 44 per cent of judges here being in organisations such as the freemasons. The requirement for registration in England and Wales was ditched because an election was looming and Jack Straw—on his own and after having been instrumental in introducing the register—decided to scrap it as a vote catcher. It was nothing to do with the two Italian cases that were quoted in the SPICe briefing. He produced a straw man of an argument and gave his reason for scrapping the declaration rule as being that no evidence of criminality had been found among judges. However, the rule was brought in not to find such criminality, but for no other reason than to reassure the public and increase its confidence in the judiciary. The declaration rule was scrapped on a whim with an election looming by a man who, just the other week, had to apologise to the Hillsborough families because he had got that wrong. I suspect that he got the decision on the declaration rule wrong, too.
My question was whether there had been any specific academic assessment of how effective that register was when it was operational in England and Wales.
I could not say. The Home Affairs Committee seemed to like the register but Jack Straw, using his power as Home Secretary, overturned it. To my knowledge, that was not done for any academic reason.
It was interesting to look at the analogies because, as you will recall, the measure was recommended by a Westminster select committee and accepted by Government. I just wondered whether there had been any assessment of it.
Do you have any evidence of wrongdoing by masons in public life through a non-declaration of any conflict of interest? If you do, the committee would be interested to hear it.
No. It is impossible for me to find out wrongdoing by people who do not admit to being members of that group.
It is your petition, Mr Minogue, but Mr Stewart-Blacker should also feel free to respond to questions or make other contributions. You can come in now if you want, although I have one more question for Mr Minogue.
Peter Stewart-Blacker (Accountability Scotland)
Accountability Scotland’s objective is to deliver effective administrative justice for Scotland. I do not have any specific concerns about the masons; I am much more concerned about the broader aspects. Scotland is a village and people have relationships that can be damaging. Indeed, I have been subject to such a relationship in which a chief executive was a co-director with a contractor who had been appointed to deliver a contract that he was not qualified to deliver. We need effective investigation and assurances that any civil servant or MSP whom we might sit in front of does not have some agenda that is hidden or unavailable to us.
In view of the examples that we have of situations that have been covered up in the health service, in planning and what have you, I support the broader aspects of Tom Minogue’s petition. I should add that Tom is a member of Accountability Scotland, but we came to the issue rather late—indeed, we met to discuss it only last Saturday—so we are perhaps not up to speed on the freemasonry element. Nevertheless, we feel that freemasonry is a metaphor for a much broader problem in Scotland.
Before I ask you a specific question, Mr Minogue, I should advise you that if you want us to see any additional papers such as the article from The Guardian, there should be no problem with that. I apologise if there have been transmission problems. You should send the material to the clerk, Anne Peat—
The links to the Domstol documents about Norwegian judges and the article by the political editor of The Guardian were sent when I accepted the invitation to appear before the committee.
I apologise if, for whatever reason, we have not received that information. My point is that we are very happy to look at any material that you might have. If you send it to us, I will ensure that all members see it and that we discuss it at a future meeting.
Now that we have seen your petition, can you tell us in a couple of sentences what you want the committee to do?
I would like the committee to examine the conflict of oaths for, say, a 21-year-old man who might be a law student and who follows the family tradition of joining the masons. That is fair enough, but it is an onerous business. He will have a noose put round his neck, will be blindfolded and will have to roll up his trouser leg and bare his breast. Then, with a dagger pointed at his breast, he will swear to do certain things and keep the organisation’s secrets on pain of suffering all sorts of horrible punishments if he does not. He will, for example, get his tongue torn out and his body will be left to the sea and the wind. One imagines that a 21-year-old law student would take that sort of thing seriously.
When he is 40, the same man gets the call to become a judge or sheriff and is asked to swear an oath to judge without fear or favour. Apologists for freemasons will say, “Well, he’s now judging without fear or favour, so the previous oaths don’t matter.” What kind of man would take an oath and not mean it? I think that there is a conflict of oaths there. Someone’s promise to prefer their brethren in the masons cannot simply be dismissed when they become a judge. Personally, I see that as a problem.
Nevertheless, my petition is not aimed only at the things that Tom Minogue is worried about. People have the right to know whether a judge who sits in judgment and balances evidence from two people—one of whom might be a non-mason while the other is a mason—is a mason or a member of Opus Dei, the Orange order or the British National Party. I see conflicts in some of the demands that are made by those organisations.
That is where I am coming from. Indeed, it is not just me who has seen the issue—the two Home Affairs Committee reports make it clear that all England and Wales, too, saw it and there was great public concern. Parliament would not spend all that time on the matter for nothing, and Norway’s Government has not demanded the declaration of membership of freemasonry for nothing.
Freemasons are a ubiquitous part of our national culture. In fact, one ex-master mason described them as
“part of the warp and weft of public life in Scotland”.
I have drunk in the Masonic Arms, have attended weddings in masonic halls and have worked on bridges and buildings that have been inaugurated or consecrated with masonic ceremonies. However, I cannot think of the last bridge that I worked on that was dedicated by a senior official of the Ancient Order of Hibernians, I have not attended a wedding in a Knights of St Columba hall and I would be teetotal if I relied on getting a pint in the Opus Dei Arms. If masonic organisations have similar demands for the preferment of or bias against people, I would want them to be introduced into the argument because they would be just as relevant.
Thank you for that. Some of my colleagues will now ask questions.
You and your petition make the rather bold assumption that freemasons
“demand fraternal preference to their brethren over non-brethren”,
after which you mention
“organisations which have constitutions or aims that are biased against any particular sect, religion or race.”
What proof do you have that masons demand such “fraternal preference” and that they are
“against any particular sect, religion or race”?
As I am not a freemason, I have not taken the oaths myself. Like everyone else I get my information from libraries, the internet and countries that, unlike Scotland, are not secretive about freemasons. I find Scottish freemasonry very secretive and unique in other ways. No less a person than the grand secretary of the grand lodge agrees with me on this point; he is a nice chap called C Martin McGivern, who gave me a tour of the grand lodge. We talked about the unique aspects of Scottish freemasonry, which for historical reasons has a sort of sectarian or what one might call Orange flavour. He told me about visiting America and seeing bumper stickers that said, “Toot if you’re a mason,” and he said, “Tom, I live in Glasgow. If I put one of those stickers on my car, it would be wrecked.” As I have said, freemasonry in Scotland has a unique, secretive nature that does not exist elsewhere; indeed, English masons have told me about its sectarian aspect and that they are shocked when they come to Scotland and find that the freemasonry here has an Orange flavour.
I have learned about all this from not only my reading but the university of life and bitter experience. I have negative views of freemasonry. Some of the best people I have ever known have been freemasons, but my general experience in the engineering and construction industry is that freemasonry is not a good but a corrosive influence. When I was tried, there was no doubt that freemasonry was at the back of it; logic was stood on its head and I decided to look into and challenge the matter. All of my life I have had negative experiences of it—it is the very antithesis of meritocracy and a terrible thing. Of course, that is only my view.
11:15
It is your view—you do not have proof.
On your point about openness—to pick up on what the convener said—it would be helpful to get hold of the document that you forwarded on operations in Norway.
You have it.
Yes, we will get it.
You will be aware of the cases that have been heard in the European Court of Human Rights—you alluded to them in your presentation—that suggest that the introduction of the kind of law that you suggest would breach the right to freedom of association, which is guaranteed under the Human Rights Act 1998. In addition, the court held that treating membership of the freemasons differently from membership of non-secret societies was unjustified discrimination. Therefore, if the Scottish Government or the Parliament were to take on board your petition, would it not be breaching a ruling of the European Court of Human Rights?
No, it would not be, because that is not what the two cases in question establish. Jack Straw—who, as Home Secretary, had a team of lawyers at his disposal—did not rely on those cases. He never said that they would have blown the legislation out of the water. He did not say that that was why he overturned the rules. He said that the sabre rattling of the United Grand Lodge of England as a result of those two spurious Italian cases caused him to reconsider. What caused him to change the rules was the fact that he could not find any evidence of criminality among the judiciary. I can read out what he said, if you would like.
That is up to the convener.
Is it brief, Mr Minogue?
It is fairly brief. In a statement to Parliament, Jack Straw said that the review of the policy—which he carried out because of the sabre rattling of the United Grand Lodge of England—had
“shown no evidence of impropriety or malpractice within the judiciary as a result of a judge being a freemason”.
He did not change the policy as a result of the two Italian cases. It was because he found that there was no impropriety that he felt that
“it would be disproportionate to continue the collection or retention of this information.”—[Official Report, House of Commons, 5 November 2009; Vol 498, c 55WS.]
The second of the Italian cases was not even contested. One of them banned freemasons from certain jobs. No one is suggesting that that should happen.
Notwithstanding that, surely you accept that those two rulings would cause the Scottish Government a problem?
No, I do not. Jack Straw did not believe that they caused a problem. He did not say that the UK Government was in trouble because of those two cases. He said that the fact that the United Grand Lodge of England might go for a judicial review on the back of them caused him to hold a review. When he held the review, it was because there was no evidence of criminality among judges that he decided to change the policy. Jack Straw created a straw man—funnily enough—as far as the Italian cases were concerned. The rules that he overturned were not about criminality among freemason judges; as the two Home Affairs Committee reports make clear, their purpose was to instil public confidence in the judiciary, not to catch crooked judges. Therefore, to scrap them because no crooked judges were caught was to use a straw man argument.
I reassure Mr Minogue that I have no vested interest in freemasonry. As a primary school pupil, I took an oath to the Tufty club. I hope that the fact that I have never renounced Tufty will not compromise me. The crucial thing about that is that my oath to Tufty was not an oath in law. I have sympathy with some of the arguments that you mount, if not all of them, but it is my understanding that the oath that freemasons take is not an oath in law, whereas the oath that a judge takes is an oath in law. I would have thought that that took primacy over a more casually delivered oath.
I want to ask you specifically what the practical consequence of your petition might be. It talks about giving the
“litigant, or plaintiff wishing to exercise their rights to a fair hearing”
access to a register of judges who belong to such organisations. Is the implication that, if a judge was a freemason, that would automatically invalidate the trial that took place, or that, if the plaintiff was a freemason and so was the judge, the verdict that was subsequently arrived at would automatically be rendered unsafe?
I am trying to understand what the practical implication of the petition would be. Forgive me for saying that it seems to me that the practical implication would simply be chaos in our legal system for a casually delivered oath. You articulated why part of the oath is, in some sense, a pantomime in contrast with the enforceable legal oath that is taken by judges and all the others who are involved in the criminal justice system. I am therefore uncertain whether the consequence of what you are seeking would be complete chaos that relates to a declaration that is not legally enforceable in the first place.
I do not think that anyone would say that the judicial system in Norway is in complete chaos because Norway has a register of freemason judges, and I do not think that a freemason’s oath is, as you put it, a casual oath.
It is not legal.
You said that it is casual, but that does not involve getting a dagger pointed at your breast and a noose round your neck.
As far as I know, the dagger has never been plunged and the noose has never been pulled. To my mind, it is all slightly ridiculous, but an element of theatre is involved. I do not see the declaration as legally enforceable. To be fair, Norway is not one of the countries that I at least regularly point to as being a beacon of all hope, truth and justice in the world today, although others might do so.
You are one of the few. The oath is not a trivial thing, and I would not trivialise it, as you have, and say that it is just a piece of pantomime. In my experience, I have seen freemasons get away with virtual murder by dint of the fact that they were freemasons in industry. Therefore, I see the oath as a powerful thing, and I see logic stood on its head when a mason helps a mason.
I do not think that the proposal would cause chaos or invalidate every trial. It would help people such as me. Those people are not, as Jim Wallace said, unique. There has been an overwhelming groundswell of concern in England about the Stalker affair and the West Midlands serious crime squad, and we now have policemen investigating the Hillsborough cover-up—freemasons have been banned from that. There will therefore be another groundswell. We continually get those things; we currently have such a situation in the Metropolitan Police with the press leaks. There is public disquiet about masons subverting the course of justice.
People such as me want the right to ask whether a judge has such obligations. I should have had that right when I went to trial. I do not even say that I would always object about a judge; in fact, if a judge wore his freemasonry on his sleeve and said, “I’m a freemason, and I don’t care who knows it,” I would say, “Well, okay. I’ll put my trust in you. You’re a man who wears that on your sleeve.” I have had many freemason friends who have been very good friends and honest men.
As I have said, the hidden element is peculiarly Scottish. The sectarian element and the massive numbers are also peculiarly Scottish. All those things cause me disquiet, and there are many people who are like me. The 3,116 people who supported my petition are obviously evidence of that.
I would feel a lot better if judges were open about all their memberships; I include not only the freemasons in that. When I was researching the Speculative Society of Edinburgh, I looked at every judge that we had. Over two thirds of them were members of that all-male elite from the University of Edinburgh. I could look into those judges and tell whether they were a member of the New Club, which Burns club they were a member of, and whether they were a member of the Tufty club or whatever you like, but I never found one who had declared membership of the Speculative Society of Edinburgh. As soon as people see that, it causes them concern.
Kennedy made a great speech about secret societies and our distrust of secrecy. It is true that most people who are not in those societies distrust them. In this day and age—the 21st century—people are having nooses tightened round their necks. You might say that that is a bit of theatre in making promises, but I do not see that that has any place in a modern society. If somebody is going to do that and pledge allegiance to their brother, I am entitled to know.
I am not alone in this. In evidence to the 1998 Home Affairs Committee, Lord Irvine of Lairg spoke about the column of mutual aid that we all perceive masons to have, to help a brother who is in trouble. He said—and he should know, right enough—that when people are in court they usually are in trouble.
If I were faced with someone getting the benefit of the preferential treatment that a mason gets and having the edge over me when our evidence was compared, I would be very concerned. If that was likely to happen in a case, I would insist that I wanted to know.
However, it might be the case that I did not want to know. I have been married for 44 years. Say my wife said, “I’m getting rid of you.” My wife is from a masonic tradition, as it happens, but if we went for a divorce case I would not say to the judge, “I want to know if you’re a freemason, because you might favour her,” because that would not be a concern of mine.
It would only concern me in certain instances. Each case would be individual and it would not apply across the board.
Your petition says:
“make it compulsory for decision makers such as sheriffs, judges”—
we are concentrating on judges at the moment—
“and juries at their courts, arbiters, and all panel members of tribunals that are convened and held in Scotland”.
It seems to extend beyond judges and sheriffs—anyone can be called to serve on a jury. Do you honestly want everybody who is an arbiter or sits on a jury to have to declare, for the time that they sit on that jury, whether they are a member of an organisation such as a masonic order?
It would not affect cases across the board, but it would apply to people who sit on juries in certain cases. That would be decided by legal officials in the case, which goes back to Jackson Carlaw’s question.
I did not include that in my first edition of the petition, but I was persuaded by the eloquent argument of the late Paul McBride QC, when he spoke on “Newsnight Scotland” after the Neil Lennon assault case. He described a completely and utterly inexplicable verdict in the case of the man who was accused of assaulting Neil Lennon. He said:
“In Scotland we have juries who don’t have to read, don’t have to write, don’t have to count and may be full of prejudices, unlike other countries. We may have to visit this area again.”
He was alluding to what I have alluded to: the historical orange flavour of freemasonry in Scotland. That is what I think, although I cannot speak for him; the man is dead. However, that is what he said—those are his words.
It struck me that, leaving aside illiteracy, innumeracy or whatever, you could have members of a jury who were, say, members of the British National Party—let us move away from the freemasons. You could have a jury with 15 members of the BNP or a majority of BNP members judging a black African asylum seeker. Would that be right or fair?
As things stand, nobody can question the membership of a jury. In Neil Lennon’s case an Irish Catholic stood trial and it might have been fair to have had a certain amount of jury vetting to make sure that we was not tried in front of 12 or 15 Orangemen. I can see a requirement for vetting in certain circumstances. Of course, it could be the other way round. I think that such circumstances would be unlikely, but if a prominent Orangeman stood trial, would it be right for him to be tried by 15 members of the Ancient Order of Hibernians?
For the previous version of the petition I looked at my own case, in which decisions were made by a sheriff, and the sheriff was the sole arbiter of my guilt or innocence. However, I picked up on what Paul McBride said and after hearing him I thought, “That’s right enough. It’s normally a jury.” I do not think that it would apply every time, but why can we not ask a team of jurors to do that? One of the supporters of the petition tells me that that happens in America all the time.
11:30
My question was about people having to make a declaration if they sit on a jury. Your response was that law officers might make that decision, but only in certain cases. Should we prescribe who can sit on a jury or who can hear a case only in certain cases, or should it be in all cases, given the petition? You have gone through a list of organisations in your opening statement and answers, including the masons, the Ancient Order of Hibernians, Opus Dei, the Orange order and the Knights of St Columba. You have not mentioned the Eastern Star and you have not said whether church elders should be included, although you alluded to that in talking about the Paul McBride interview on “Newsnight Scotland” on the Neil Lennon case, in which Mr McBride said that we might have a built-in bias in Scottish society that could predetermine the outcome of judicial cases based on the jury of 15 peers judging a case.
If a member of a jury was a member of the BNP or another organisation with a leaning towards objections to colour or religious groupings, and that was known to the court officials, I would expect those officials, or the lawyers acting in the case, to make the court aware of that. However, if we widened out the proposal to include jurors as well as tribunal members and other such people in Scotland, in effect, who would sit on a jury?
I do not think that I am widening it out at all. I am talking about the ability to determine whether the members of a jury are members of organisations that demand a bias of their members or that have a bias against a group. Any body that considers the issue would have to determine which organisations fall into that category. I do not know of many that would, and I do not think that it is such a big thing to ask people to declare membership of the freemasons, the Orange order, the BNP or the Ancient Order of Hibernians if that is necessary. I cannot speak for Paul McBride, but I quoted him because I took on board what he said. To move away from the petition, the bigger issue is that the system cannot be a good one if a man or woman on a jury can be illiterate. So our system for juries is not perfect. In America, for instance, jury vetting is quite a big thing, mainly on the basis of race. It might be an issue here but, if we get a better justice system out of it, so what? It is worth a bit of trouble.
To go back to my point, who determines whether someone can sit in a court case as a juror, a judge, or a sheriff or who can sit on a tribunal when a case is being heard? In terms of the petition, who makes that decision, because you are transferring—
Let us say that the prosecutor—
Let me finish, Mr Minogue. You are potentially transferring power to someone else. Paul McBride is not here to defend the statement that he made on “Newsnight Scotland” in relation to the Neil Lennon case. People can view that interview, but we are unable to question or examine what he meant by those comments. People from across society are asked to serve on juries. Who will determine whether they have a built-in prejudice in hearing a case?
The prosecutor—the procurator fiscal—and the counsel for the accused should have the right to ask for a declaration. However, my petition is not a perfect document that a subordinate legislation committee has examined for the kind of small nuances that you have described. The petition is about a principle, which still holds, so I should surely not be asked questions about administrative details at this point.
Mr Minogue, the committee members are here to examine petitions. We are at liberty to examine how or whether we will take a petition forward and we need as much information as possible from the petitioner to assist us in determining how best to do that. That is the reason for the questions that have been asked.
Of course.
We are a bit short of time. If none of the members who have not asked a question wish to come in, we will move on to the next stage.
As you probably know, Mr Minogue, from seeing what happened with the previous petitions, we have a summation stage when the committee decides on the next steps for the petition. I therefore ask you to bear with us for a few seconds.
Members will note that the clerk’s paper has a couple of options for the petition, one of which is to seek further information while continuing the petition; the second is to take any other action that seems appropriate to the committee. I think that it would make sense to seek further information on the petition. The paper suggests that we could write seeking information from, for example, the Scottish Government and the Lord President. Do members agree to take that course of action?
The paper suggests that we could write to the Scottish Government, the Lord President, the Sheriffs Association and the Scottish Justices Association. I suggest that we also write to the Lord Advocate, the Crown Office and Procurator Fiscal Service and Police Scotland to get their views on the petition.
Can I—
I am sorry. We are at the summation stage now and are not allowed to take any further evidence.
I would like views to be sought in two respects: first, on the desirability of the petition’s proposal; and, secondly, on its practicality. I think that they are quite distinct themes, so that might affect our view when we finally consider the petition.
We have agreed to write to the grand lodge of Scotland. I remind members that David Begg, who is the grand secretary, offered to come to the committee to give evidence. It is my duty to ensure that members are aware of that offer. Obviously, it is up to members to decide whether to have oral evidence rather than written evidence. Frankly, I am neutral on that, but if members feel that it is important to bring Mr Begg to the committee, I am happy to go along with that.
I would like to reserve my position on that offer at this stage.
Similarly, I suggest that we reserve our position on inviting Mr Begg until we receive further evidence.
Right.
I think that that is a sensible move. I agree that there is merit in contacting all the suggested bodies to get their views.
I agree with what has been suggested as the way forward.
I am happy to go with the recommendations.
I thank members for that.
Mr Minogue, we will continue your petition and write to the various organisations that you have heard mentioned. At the moment, we will not ask Mr Begg to give oral evidence and will reserve our position on that. However, we will seek the fullest possible information on the petition and we will keep you up to date with developments. When we get all the information that we have sought, the committee will discuss it at a future meeting.
I am sorry if there were some communication problems, but I remind you of my earlier offer that if you have any paperwork that you want the committee to be aware of, it is probably best for you to send it to us after you get home. I will ensure that it is circulated to all committee members. I thank Peter Stewart-Blacker, too, for attending the meeting. It was useful to get your views. I thank both gentlemen for coming and giving evidence.
I suspend the meeting for two minutes to allow our witnesses to leave.
11:39
Meeting suspended.
11:40 On resuming—