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Chamber and committees

Public Petitions Committee

Meeting date: Thursday, June 29, 2017

Agenda: Continued Petition, New Petitions, Continued Petitions


Contents


Continued Petition


Judiciary (Register of Interests) (PE1458)

The Convener (Johann Lamont)

I welcome you all to this meeting of the Public Petitions Committee. I remind people to switch their mobiles and other devices to silent.

At agenda item 1, we are dealing with a continued petition, PE1458, which calls for a register of interests for members of Scotland’s judiciary. We will take evidence from the Lord President, Lord Carloway, who is accompanied by Roddy Flinn, the legal secretary to the Lord President. I thank you both for joining us this morning.

We have copies of a number of recent submissions, including the most recent correspondence from Lord Carloway. In order to make the most efficient use of our time, I suggest that we move straight to questions from members. I will open the questioning.

I want to explore some of the issues that you have identified as potential risks or inhibitions to the administration of justice should a register of financial interests be introduced. One of those is the risk of retaliation by a dissatisfied litigant by way of online fraud. You have commented that that has not, to the best of your knowledge, happened in respect of those judges who are currently required to disclose interest, but that the sample size of those judges is too small to derive comfort from.

In identifying that potential risk, have you given consideration to the experience of other holders of public office who have to declare their financial interests? For example, members of the Scottish Parliament, local authority councillors and members of public bodies all have a role in making decisions that may leave people dissatisfied. Are you aware of any individuals in those categories who have been victims of retaliation by way of online fraud?

Lord Carloway (Lord President of the Court of Session)

I am not aware of details of members of other public institutions being subjected to online fraud, but judges are in a peculiar position in relation to this matter. They make decisions that inevitably cause disappointment to one party to a litigation, and those people are, or can be, resentful. I appreciate that that can happen in wider public life, but it is a particular problem for the judiciary.

The losing party can, in some extreme cases, blame the judge for the failure of their case and seek to find a reason beyond the actual decision as to why the judge found against them. It is not unknown for persons to form a malicious or hostile intent towards a judge, or even judges in general, if they are disappointed with the outcome of their case. They can become paranoid or suspicious about the reasons for what is a simple finding of fact in law by the judge, and I would be concerned if they were to source, and potentially damage, the judge’s personal or pecuniary interests.

The Convener

Do you think that there is a general culture of people looking for explanations beyond the decision? Do people do that already, not necessarily in respect of financial matters but by interrogating any connections that judges might have that might explain a decision?

Lord Carloway

It is a relatively common phenomenon, especially with party litigants, who, if they lose their case or a particular aspect of it, may search for reasons as to why that has happened. They will search for reasons that are outwith the obvious—in other words, that they lost the case because they were wrong in law or in fact. They will seek reasons as to why the judge found against them, and they will search for things that are peripheral to the case. That is a problem that we have to deal with—“put up with” is perhaps the wrong expression.

Do you think that that is compounded by the world of online communication? Is online fraud now a particular issue?

Lord Carloway

As followers of blogs and so on in relation to judges will know, there is quite a lot on the internet that is, shall I say, not terribly complimentary about particular judges. Again, that is something that we have to put up with on a daily basis. We are subject to basic abuse by litigants of one sort or another on the internet, and that should be guarded against.

In the First Minister’s letter to the convener of the predecessor committee, she specifically referred to the particular need to consider

“judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants.”

That is exactly the type of thing that I am talking about.

Angus MacDonald (Falkirk East) (SNP)

Good morning, Lord Carloway and Mr Flinn. I very much appreciate your attendance at the meeting.

You have identified a possible risk to the inhibition of justice in judicial recruitment or in judges starting to decline positions on bodies such as the Judicial Appointments Board for Scotland and the Scottish Courts and Tribunals Service in the event that judges are required to disclose financial interests. Given the principles that guide conduct in public life, why should a requirement for transparency act as a disincentive for judicial office-holders but not for other people who hold public office, such as MSPs?

Lord Carloway

A judge or a sheriff is, indeed, like many people, a holder of a public office. The critical distinction between a judge and an MSP, for example, is, of course, that the judge has to be independent of any form of Government. That is what we are looking at. A judge is therefore in exactly the opposite position from those whose work has a political dimension.

I hasten to add that the system here has an international reputation for fairness and not being corrupt, and we are extremely keen to protect that reputation. Members might have seen in the papers that the Council of Europe has an anti-corruption organisation called GRECO, which has specifically examined the potential for corruption in the United Kingdom judiciary, including the Scottish judiciary, in recent years. Its findings, which I think I quoted in the papers, were fairly clear. It did not find

“any element of corruption in relation to judges”

in the United Kingdom,

“nor was there any evidence of”

judicial

“decisions being influenced in an inappropriate manner.”

Because of that, it did not see any necessity to introduce a register of interests specific to the judiciary.

To answer Angus MacDonald’s question a little more directly, we in Scotland do not have a career judiciary in the sense that we have judges who begin their judicial life at the point of leaving university, as judges in many countries on the continent do. We recruit our judges and sheriffs from people who are generally, although not exclusively, in private practice. They are recruited in their 40s and 50s, and perhaps sometimes even a little later as far as the senior judiciary is concerned. We have a relatively small pool of lawyers of excellence who are capable of taking on the job of being a member of our senior judiciary.

Members may be aware that there are currently certain problems with the recruitment of the senior judiciary in particular because of certain steps that have been taken relative to pay and pensions generally. We have particular difficulties with recruitment at the moment and, if I were to say to senior members of the profession, which they are before they are recruited into the judiciary, “By the way, if you wish to become a judge, you will have to declare all your pecuniary interests and open them to public scrutiny,” I have no doubt whatsoever that that would act as a powerful disincentive for lawyers of experience and skill to become members of the judiciary. I assure the committee that we need them more than they need us.

Angus MacDonald

You mentioned the career judiciary. You will be aware that we took evidence from your predecessor, Lord Gill. It is probably fair to say that he did not have a high regard for the system in the United States, where there has been a register of judicial interests, as you will be aware. What is your view of the fact that the United States has successfully introduced a register of judicial interests? Do you agree that it has helped to increase confidence in the judiciary in that part of the world?

Lord Carloway

I am not in a position to make any comment whatsoever about the United States judiciary. I simply do not know enough about it to make a meaningful comment. You will be aware that there are problems in relation to the United States judiciary, but I am simply not qualified to comment on the depth of the situation.

I can comment on something that I am sure that the committee is aware of, which is that the Supreme Court of the United Kingdom considered this matter because, previously, as members of the House of Lords, its members were required to have a register of interests. It was decided that members of the Supreme Court should not have to have a register of interests, and I would have thought that, if that is the view of the United Kingdom Supreme Court, we should give some consideration to it, even if, of course, we are not bound by its decisions in that regard.

Brian Whittle (South Scotland) (Con)

Good morning. In relation to any changes to the current system of recusal whereby it is for a judge to decide whether to recuse, you have commented on the inefficient disposal of business in the courts. I would like to explore the balance between the efficient disposal of business and having systems in place that ensure there is trust in judicial decisions. In that respect, is there any way of quantifying the risks to the efficient disposal of business and, if so, whether your office has carried out an assessment of that?

Lord Carloway

Are you talking about the process of declining jurisdiction, or recusal, as it is put?

Yes.

Lord Carloway

I preface my remarks by saying that, as far as I have a concern about this topic, it is not that judges are failing to recuse themselves in particular situations, because I am quite satisfied that they do so when they should. My concern—this is also to do with the disruption of business—is to do with judges or sheriffs who are recusing themselves unnecessarily in circumstances in which they should not do so. That is a much more common phenomenon.

One has to bear in mind that we have litigants who will effectively try to forum shop—that is to say that they will encounter a judge or sheriff who is not to their liking, and they will attempt to remove that judge from the proceedings on pretexts such as their having some remote connection with the case or the people involved in it. That type of thing can cause major problems in the management of business.

In normal cases in which someone is represented by a member of the legal profession, if there is a genuine concern that the judge or sheriff has an interest in the case, that will be raised informally with the clerk of court and, in practical terms, the sheriff court judge will simply decide not to be involved in that particular case. Again, that is not something that can be done in every court—particularly not in courts that only have one sheriff, and especially if it is not raised in advance.

What happens, in the sense of practicalities and reality, is that civil business—which, again, is primarily what we are talking about here—can be allocated relatively late in the day, and a sheriff or a judge might only on the day in question be faced with an application formally in court to decline jurisdiction in that case. If he does so, it is likely that that case will simply have to go off, with all the inconvenience that that involves.

There was a specific point about whether we think that judges should not deal with this question but should pass to another judge. Do you wish me to deal with that point?

Yes, please.

09:30  

Lord Carloway

The answer to that particular problem is this: if a judge does not recuse himself in circumstances in which he should have done, any litigant who is dissatisfied with that and loses the case can appeal that and the matter will be reviewed by three judges. Therefore, there is a form of open, public scrutiny of the decision not to recuse a judge. If there were a system whereby that judge could not decide that matter himself or herself—after all, it is he or she who knows whether he or she has a direct connection with the litigation or the persons involved in it—and that person had passed on the matter to another judge or sheriff, the business in that case would be ceased for the period until that matter was decided. The business that is scheduled for the other sheriff or judge would also be ceased in order that the other judge could take the decision. That other judge is likely to find the decision difficult if he or she does not know the particular facts.

I hope that I am, in a realistic sense, explaining the disruption to business that such decisions can involve. The simplest way to deal with them is the way in which we are dealing with them at the moment. First of all there is the informal route, which means that the judge or the sheriff is not hearing the case in the first place; if that judge decides that he or she should hear the case in any event and is faced with a formal motion to recuse himself, that matter is dealt with transparently in open court and is subject to the appeal process.

Angus MacDonald

We have received a submission on this petition from Melanie Collins, in which she highlights a recusal that had, for whatever reason, not been added to the register of recusals. That was only noticed, or challenged, one year after the omission.

When Lord Gill gave evidence to the committee, said:

“To the best of my knowledge, the clerks of court are scrupulously accurate in keeping the register and therefore, wherever there is a recusal, you may depend upon its being recorded in the register.”—[Official Report, Public Petitions Committee, 10 November 2015; c 3.]

Does it not concern you that, in the past, recusals have failed to be listed in the register of recusals? Are you not also concerned that the register is being altered—in some circumstances, years later—and only when members of the public, the media or litigants point out that there are gaps in it?

Lord Carloway

I note that there was an error in not recording one incidence. I am not particularly concerned about that. The position is that all recusals that appear in the register are as a result of events that occur in open court, in a public forum, and they are recorded in the interlocutor of the court concerned. I think that committee members have a copy of the interlocutor of the court order that deals with the recusal. That is a public document, which is open to public scrutiny. It is a result of the hearing in open court in which the parties would be well aware of the decision and they would have a record of it. Therefore, it does not particularly concern me that there was an unfortunate error in transposing that information into a register of recusals, which is for a different purpose.

Is that the only error that you are aware of?

Lord Carloway

It is the only error that I am aware of. The judge or the sheriff will make a decision in open court. The direction to the clerks of court is that they should transmit that to the judicial office, so that it can be recorded in the register. If that was not done—it was not done in this case—that is regrettable, but it is not a matter of deep concern to me. One mistake in many instances does not cause me a concern about the general system.

But you can understand how Melanie Collins would not feel that it was—

Lord Carloway

She was involved in the litigation. She must have known that the decision had been made, because she is the person who was presumably in court at the time. She, or her representatives, would have received a copy of the court order dealing with the recusal.

Okay. Thank you.

I welcome Alex Neil MSP to the meeting. He, too, has an interest in this item. I will take committee members first and if Alex Neil wants to ask a question after that he may do so.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning, Lord Carloway and Mr Flinn. You talked about problems that you perceive there would be with recruitment should a register be introduced. I may have missed a discussion of this in our background briefing, but what is the Law Society’s view on a register of interests?

Lord Carloway

I do not know the answer to that.

Fair enough.

Maurice Corry (West Scotland) (Con)

Good morning, Lord Carloway and Mr Flinn. I welcome your indication that you would have no problem extending the register of recusals to cover instances where judges have considered recusal but have made the decision not to recuse. You indicated that what you considered may provide additional transparency—that follows on from Angus MacDonald’s comment. Have you considered options for the ways in which the register could be made transparent when any additions or amendments are made to it?

Lord Carloway

Sorry, what is that in relation to?

Options to make it more transparent.

Lord Carloway

Do you mean that we could, for example, put the parties’ names in?

Yes.

Lord Carloway

That has been considered, but it is not thought to be particularly necessary or helpful. I return to the fact that all decisions whether to recuse are done in the public forum—they are done in open court. If anyone has an interest in seeing a particular court interlocutor, they can do so. For example, if someone was looking at the register of interests and wanted more details of that, I am sure that we could provide them with those details. However, we are often anxious not to put parties’ names in registers of a public nature such as this, because it is usual for cases to involve considerable sensitivities, such as children and so forth. Therefore, we would be reluctant to do that, but it could be done.

It could be done, but it would have to be looked at very carefully.

Lord Carloway

Yes.

Angus MacDonald

Would you be content to see information about the date on which an entry is made or a way of noting amendments to entries in the register, such as to correct clerical errors, which we are aware happened on at least one occasion? Would that enhance transparency?

Lord Carloway

Yes. That is a fair point. We could have a protocol that, if an entry was made after a fortnight, there should be a footnote to say, “Entered on such and such a date.”

That is good.

You will be aware that there was a similar petition in New Zealand two or three years ago, which was eventually withdrawn.

Lord Carloway

I thought that it was defeated.

Yes. Are you aware of whether any register was introduced in New Zealand, along the lines of a register of recusals or a register of interests, after that?

Lord Carloway

I am not. I thought that the matter ended with the defeat in Parliament.

Alex Neil (Airdrie and Shotts) (SNP)

I apologise for being slightly late. I had to go to the Public Audit and Post-legislative Scrutiny Committee. I apologise in advance if I cover ground that has already been covered.

Lord Carloway, as an issue of principle, do you think that it should be left only to a judge to decide whether they are going to recuse themselves, or should you or the keeper of the rolls be able to insist on recusal if you believe that there is a potential conflict of interest?

Lord Carloway

The short answer is that I do not believe that there is any problem with the current system, which is that the judge, who knows what his connection is to the case or the parties to it, should make the initial decision. That decision is made in open court, when the parties are present, and it is subject to review on appeal. In other words, if somebody is dissatisfied with that decision and if the litigant eventually loses the case, the decision will come before three judges who will review whether it was correct. If it was incorrect, the decision on the case would fall.

Alex Neil

The person bringing the case to court may not be aware of any conflict of interest that the judge may have and may never find out that there was one, but the judge may well have been influenced by a particular interest. Surely that is not right. If there is any potential conflict of interest, surely there should be a declaration or commitment by the judge, making an explicit statement that there is no conflict of interest. People may not have the resources to appeal, for example. Is the system not balanced against people who come to court for justice?

Lord Carloway

No, it is not. I go back to something that I mentioned earlier, which is very important. Scotland does not have a corrupt judiciary. The matter has been examined by independent persons, notably the GRECO anti-corruption body that operates under the auspices of the Council of Europe, which examined the UK judiciary, including the Scottish judiciary. It was clear that, fortunately, we, as distinct from many other countries, do not suffer from corruption in the judiciary. For that reason, it did not consider that a register of interests was necessary. If one introduces such a measure, one has to be satisfied that it is necessary and also that it is proportionate. If one analyses its proportionality, one has to look at what exactly we are guarding against. If the situation were to be that there was corruption in the Scottish judiciary—which we would discover at some point or another—of course we would have to consider measures to prevent that, one of which might be a register of certain interests. Until such time as it is demonstrated that there is corruption in the Scottish judiciary, I am entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary.

Alex Neil

I want to draw a parallel with the register of interests that members of the Scottish Parliament have to sign and regularly update. That came about not because of any allegations or belief that the system was corrupt or that members of the Scottish Parliament are corrupt. In the 18 years that we have been here, I have not heard one allegation of corruption. The register is there not because of allegations of corruption but to ensure that there is no prejudice. If I participate in a debate and I have an interest that I have not declared, I will be open to an allegation not of corruption but of prejudice. Because there is a register of interests and because I have to declare interests in a debate or in a committee meeting such as this one, there is a transparency to ensure that I do not act in a prejudicial fashion.

To go back to the case that Mr MacDonald cited as I came in—the case of Advance Construction and Donal Nolan, in which Lord Malcolm’s son was involved as a lawyer for one of the parties—the issue there was not an allegation of corruption but one of possible prejudice or perception of prejudice. That is a very good example of why either a register of interests or a more robust system of recusal—or perhaps both—might serve the judiciary very well.

Lord Carloway

I am satisfied that Lord Malcolm’s actions were entirely honourable and that he acted in accordance with the code of judicial ethics. I am not sure what is—

Have you investigated it?

Lord Carloway

I am aware of the background to it.

No, but have you investigated it?

Lord Carloway

I have read the papers that it involves.

With all due respect, Melanie Collins and Donal Nolan have written to you on numerous occasions, and at no time have you replied to them, let alone met them, so you have not heard the other side of the case.

Lord Carloway

I am sorry, but I am not aware of letters to me by those particular persons.

Your office—

Alex, let us be careful that we do not get into anything specific on that.

Yes—absolutely. My point is about how Lord Carloway can reach that conclusion if he has not heard the other side.

Lord Carloway

I have read documents emanating from the persons that you have mentioned. As far as I am aware, they were not addressed to me, but I could be wrong about that. The position is that I am aware of the circumstances of the case. I am satisfied that Lord Malcolm’s conduct was entirely correct in the circumstances. That is part of the problem that you have perhaps highlighted. That case has nothing to do with a register of pecuniary interests. The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.

No—we have to register what close relatives do.

09:45  

Lord Carloway

Can I deal with the difference between MSPs and the judiciary, which I think I dealt with earlier this morning? It is quite a different function. A politician is by nature someone who is not independent in the sense that the public expect the judiciary to be. That is not a criticism; it is a reality. As a generality, judges do not deal with the type of issues that politicians deal with. Politicians have executive power. They are dealing with major economic interests of one sort or another. As a generality, judges are not dealing with that type of thing. They are dealing with issues that are usually between private individuals but can be between private individuals and Government or others. Judges are not dealing with the type of issues that politicians are dealing with such as planning inquiries and so on at a local level or major economic development in society as a whole.

The need for independence in the judiciary is different from the kind of independence that a politician requires, because with a politician it is primarily, as Alex Neil has pointed out, about issues of a pecuniary nature. Those are not the issues that arise in most of the recusal cases with which we are concerned. What we are concerned with as judges is that we appear to be independent of all connection with the case. It is not a question of having a pecuniary interest.

If one looks at the register of recusals in the past year, I do not think that any of them were to do with pecuniary interest at all. They were to do with social connections with people—whether someone is a friend; whether a party to the litigation is a friend of a friend; and matters of that sort. Those are the types of situations that are raised by people in the practical reality of litigation and those are the issues that are being dealt with. Unless you are suggesting a register of one’s friends—and presumably, therefore, one’s enemies—the real issue with recusal in the judicial system would not be addressed.

Last question, please, Mr Neil.

Alex Neil

If I can just finally draw the parallel between our register and what has been talked about in terms of either recusal or financial interest, MSPs—as individuals and collectively—do not have executive power per se unless they are ministers, but what is very important is the perception of fairness and the perception that justice is being carried out.

If, in any case—without referring to a specific case—a close relative of a judge is participating in the case, rightly or wrongly, the perception is that there may be a degree of prejudice. It might be very unfair, but the point is to try to ensure that the excellent reputation of the judiciary down the years in Scotland is retained. That reputation is not just for not being corrupt, which we all accept—we are not accusing anybody of corruption. The perception of fairness and the perception of not being prejudiced are also extremely important. I would argue that, certainly in at least one case recently, which we have referred to briefly, the perception is that there may have been unfairness and prejudice in the way in which the matter was conducted, particularly as the judge concerned was involved in the case not once but on a number of occasions.

Lord Carloway

I disagree entirely with your analysis of that particular case and I repeat what I said earlier. The case that you refer to did not involve the judge’s son having any active involvement with the case whatsoever. We have very clear rules in our statement of principles of judicial ethics on how to deal with such matters and it is made very clear in that statement that if a relative is the advocate in the case before one, the modern approach is that the judge should not hear the case, or one could put it another way round—the relative should not be presenting the case. Whichever way it happens to be put, the situation that we had 20 or 30 years ago, when it was commonplace for the relatives of judges of one sort or another to be advocating the case, no longer exists.

That practice no longer exists not because it was thought that there was any actual problem with the decision making but, as you say, because of a perception of unfairness. There is a clear judicial rule about that and I am not aware of any case in which it has been breached. I myself have been in a situation in which my son was involved in a firm that was litigating before me. In such a case, the judge would be expected to declare it and the parties would then decide whether to take the point. However, if they took the point and the relative just happened to be a member of the same firm operating in a different department, I would not encourage the judge to recuse himself.

The Convener

There are no final questions, so I thank you very much for your evidence. It has been helpful to clarify many of the issues that you presented to us in written evidence and to have an opportunity to explore some of the issues around prejudice, for instance.

We might ask the petitioners to respond in writing to the evidence to allow us the opportunity to reflect on it, if members are so minded. When we consider the petition at a future meeting, we can consider any further actions that members might deem appropriate having read that response. We might want to make recommendations or suggestions to the relevant decision makers, but it is not within the committee’s powers to implement the action that is called for in the petition. However, we will take a view on the petition and dispose of it to somebody else who will make that decision. Today’s evidence has clarified many of the issues in my mind. Are members agreed to take the action proposed?

Members indicated agreement.

I thank you for attending, Lord Carloway. We will ask the petitioner to respond in writing to what we have heard, but we found it very useful to clarify your perspective on the issues that the petition raises.

Lord Carloway

Thank you very much, convener. I am grateful to the committee for taking the time to listen to me.

09:52 Meeting suspended.  

09:54 On resuming—