Judging for ourselves if conflict of interest in courts
Cross-party calls are being made for all of Scotland's judges to declare their interests.
By Russell Findlay
Most people would struggle to name Scotland's top judge or many of the other 700-plus judicial office holders who preside in our civil and criminal courts.
His grand title is Lord President of the Court of Session and Lord Justice General (previously Colin Sutherland, lawyer) and one of his jobs is to take the swearing-in oath of First Ministers.
Yet he and these other largely unknown judges, sheriffs and justices of the peace hold great power - including being able to send people to prison - and their decisions directly or indirectly impact on all our lives.
However, there are growing concerns about how little we know about their outside interests and concerns that these could potentially influence decisions on the bench.
In 2012, legal blogger Peter Cherbi asked the Scottish Parliament's petitions committee to examine the issue. He had no idea that seven years later his simple call for transparency would have won such broad political support.
The committee last year concluded that a register was necessary and passed their findings to the justice committee, whose members agreed. They have called for more information from Lord Carloway and justice secretary Humza Yousaf.
The judiciary, Mr Yousaf and First Minister Nicola Sturgeon, herself a former lawyer, say existing safeguards are sufficient.
In a written submission to parliament, Lord Carloway warned of "unintended consequences" of a register which he said would also be impractical. It may also, he claimed, deter some lawyers from wanting to become judges.
Ironically, arguments for a register were boosted by the unintended consequence of the dismissive response from Lord Carloway's predecessor Lord Gill.
MSPs accused him of holding parliament in contempt when he twice refused to attend Holyrood to give evidence - but found time to travel to Qatar to give a speech on judicial ethics (only giving evidence in person after his retirement).
Scottish Conservative MSP deputy leader Jackson Carlaw accused his Lordship of displaying an "Edwardian establishment disdain for the hoi polloi" and asked whether 'the swish of judicial ermine and velvet should cow into deference both the public and the legislature".
'I absolutely believe in the independence of the judiciary, but I think that in order to maintain that integrity and independence, this step has merit in terms of transparency'Daniel Johnson
Central to opponents' argument is the vital need for judicial independence from political meddling. Campaigners say this is a red herring and a fundamental misunderstanding of the debate. The issue, they say, is about accountability and public faith and in no way threatens the independence of judges' court room decisions.
As Labour's Daniel Johnson put it: "I absolutely believe in the independence of the judiciary, but I think that in order to maintain that integrity and independence, this step has merit in terms of transparency."
Moi Ali, who quit as Scotland's first Judicial Complaints Reviewer after branding the role as "toothless", has long championed judicial transparency to match that of other public officials such as MSPs.
Now Independent Assessor of Complaints at the Crown Prosecution Service, she is puzzled by the opposition of the SNP government and believes a register could be established quickly and without any great cost to taxpayers.
"I have to say I find the Scottish Government's attitude incomprehensible," she told STV News. "On the one hand they talk about having a much more open, much more fair public life, they put requirements - and rightly so - on board members for example to declare interests.
"Their attitude to the judiciary to me makes no sense. They seem to be conflating two things - judicial independence which is really important and we would never want to interfere with the legal decision-making of judges - but they're confusing that with accountability and I think judges should be accountable.
"By not having a register of interests and not having a complaints process that it very robust, the public's really not being given protection and the government's attitude to me makes no sense."
The petition has already led to the creation of a judicial register of recusals - a public list of civil and criminal cases where judges have identified a possible conflict of interest and stepped aside. So far, 175 have been declared.
While the recusals register has been welcomed, it has also had the unintended consequence of fuelling, rather than killing off, the arguments for a register of interests.
In one recent case, a sheriff sat on case involving a football club chairman without declaring he was a season ticket holder with the same club. At least one part-time sheriff combines stints on the bench while representing organised criminal clients as a solicitor. Another held shares in a company that was subject of Scotland's biggest proceeds of crime action.
How would a criminal accused or civil case litigant know if a judge was aware of conflict and, if so, would do the right thing by declaring it? Is it not safer to empower the public by informing them of judges' outside interests?
Ms Ali said: "The secrecy definitely undermines public confidence in the judiciary, it really does, because people feel that if there's nothing to hide, then why hide it?
'The secrecy definitely undermines public confidence in the judiciary, it really does, because people feel that if there's nothing to hide, then why hide it'Moi Ali
"There's real benefit for judges in having a register of interests because it shows that they have nothing to hide, that they're operating in an open and transparent way, that they don't have links that they really ought not to have.
"It's really laying it open in the way that other people in public life do.
"I think it would build their esteem and their public standing. I think it would also lead to a reduced number of complaints about them."
The debate has exposed tensions between judges and politicians. It seems that after 20 years in existence, parliament has found the confidence to ask tough questions of arguably the most powerful group of people in society up the Royal Mile at Parliament Square.
After seven years, and the best efforts of the government and judicial establishment, the issue refuses to go away.
And while Lord Carloway and the justice secretary were unavailable to talk to STV News, MSPs on the justice committee will expect them to be more forthcoming.
Scotland's judicial pyramid
Sitting at the top of the judicial pyramid is lawyer Colin Sutherland - AKA the Lord President Lord Carloway.
As Scotland's most senior judge, he is paid £229,592 while his deputy Lady Dorrian, the Lord Justice Clerk receives £221,757.
They are among an elite group of around 240 judicial office holders in receipt of six-figure salaries, generous pensions and other perks.
There are 33 other top judges, known as 'Senators of the College of Justice' and they earn up to £210,876. They are supported by 17 temporary judges.
There are six sheriff principals across Scotland (salary £148,526) who are in charge of 142 full-time sheriffs on £137,538, 35 summary sheriffs on £110,335 and 32 part-time sheriffs.
Other six-figure judges include those sitting on the land court and employment tribunals. There are 20 employment tribunal judges in Scotland who are paid at least £110,335.
The greatest number of judges are Justices of the Peace of which there are around 450 of. Unlike other judicial office holders, they do not need to be lawyers.
They receive no salary but claim expenses during their five-year tenures.
Despite operating in our lowest courts, JPs can impose 60-day prison sentences and £2500 fines.