Judiciary (Register of Interests) (PE1458)
Agenda item 2 is consideration of continued petitions. First, we will take evidence from Professor Alan Paterson on petition PE1458, on a register of interests for Scotland’s judiciary. As members will recall, the petitioner suggested that the committee might wish to invite oral evidence from Professor Paterson, and he has agreed to appear this morning.
Welcome to the meeting, Professor Paterson—we appreciate your attendance. If you wish to make some opening comments, you may do so for up to five minutes. After that, we will take questions from members.
Thank you, convener. I am happy to answer any questions that the committee might have on this topic.
I see a register of interests for the judiciary in Scotland as an important issue but, as I have said in my written evidence, it is an issue on which I have not reached a concluded opinion. I have expressed an opinion in relation to the Supreme Court, where the balance probably tips towards the need for a register of interests. I have explained why I think that both in my written evidence and in the Hamlyn lecture.
For me, the question of a register of interests comes back to the role of the judiciary in a democracy. It is a branch of government or the state and, in a democracy, we expect the wielders of state power to have a form of accountability. It is also very important that, in a democracy, the judiciary is independent; judicial independence is a vital part of any democracy. We must therefore balance those issues of judicial independence and accountability. Indeed, issues such as recusal, criticism of judges, discipline of judges, complaints against judges and a register of interests are all areas where we try to strike that balance between accountability and independence.
Thank you. Do you think that there is a third factor—simple transparency? That is not in conflict with independence; it is just about basic standards and reasonable expectations of openness.
To me, transparency is part of accountability. The prime things that we require for accountability, generally speaking, are that judges give reasons for their decisions and that they identify who is making the decisions. That is part of transparency, and the question of a register of interests is part of the issue of transparency.
Do you have a view on what types of information should be included in a register of pecuniary or other interests?
As I have said, I do not have a concluded view on whether we should have a register of interests for the Scottish courts but, as far as the Supreme Court is concerned, there is the example of the American Supreme Court. Some might say that that is a slightly more political court than our courts but, nonetheless, its judges have to register their interests. They have to declare their financial interests, their shareholdings, their hospitality, what gifts they receive and what tickets to American football matches they get. All sorts of things have to be declared including membership of golf clubs and so on. At the start of their Supreme Court career, they also have to provide a detailed account of the clubs they are members of, their trusteeships, whether they are masons and all those issues. From time to time, the system throws up issues, but it works.
The House of Lords was the precursor to the Supreme Court, which started in 2009. Before that, the judges in the House of Lords formed a supreme court, and they had a register of interests. The judges who were members of the House of Lords then became Supreme Court judges. For example, we had Lord Hope of Craighead, who has since gone back to the House of Lords and is now on that register of interests. People can look up the register on the website and see what his interests are, but they could not do that when he was in the Supreme Court.
The Supreme Court has been very good at transparency, and rightly so; in general, it has been much better at transparency than the House of Lords was. It is much more open. Moreover, the proceedings are televised; when the Brexit judgment comes down on Tuesday, we will be able to see it. We will be able to watch everything happening. It just does not have a register of interests, even though the judges had one before—and will have it again if they go back to the House of Lords.
That is interesting. Thank you.
Good morning, Professor Paterson. An issue that has been raised in evidence is whether a register would capture circumstances in which a conflict would make it inappropriate for a judge to hear a case. However, a judge might become aware of a conflict only when they saw a witness list and were able to identify a social relationship with a witness. Do you have any views on that?
The judicial oath and the judicial code of conduct, which are very important in Scotland, mean that a judge who knows that they have an interest—for example, a relative who is a party in a case is going to appear before them—will be expected to stand down. At its best, a register of interests would identify some conflicts and either remind the judge or alert others to the fact that they potentially have an interest, although not necessarily in the case of relatives.
One of the curiosities of the American Supreme Court is that, once or twice a year, the justices, including the chief justice, overlook a shareholding that they have. A corporation in which the shares are held comes up in litigation; they get involved in the litigation, only for somebody to suddenly remember that they have shareholdings in the corporation. That is not venal or deliberate and there is no attempt at bias; instead, someone has made a mistake and overlooked something. The strength of a judicial register is that it allows fair-minded, independent and external observers to say, “Haven’t you got a potential interest here?” and the matter can be aired before the case starts. If you do not have a judicial register of interests, everything is left to the judge and the judge’s memory. Even at the level of the American Supreme Court, the judicial memory occasionally fails—although not very often.
Thank you.
Good morning. Can you expand a wee bit on examples of judicial office-holders registering their interests in connection with other roles? The petitioner has noted that in connection with the board of the Scottish Courts and Tribunals Service and you have mentioned the Supreme Court. Are you aware of any issues that have arisen for those judicial office-holders in being able to hear cases in connection with registered interests? What precedents are there that you know of in that field?
I am not sure that I have an answer to that question. Do you know what the petitioner was getting at and can you elaborate a little more on what was troubling him? Nothing springs to mind.
I think that he raised the whole subject in connection with the board of the Scottish Courts and Tribunals Service. You mentioned the similarity between those on the Supreme Court and the former law lords, so I wanted to tease out your opinion on what issues could arise from that.
I apologise for being unhelpful, but nothing on that immediately springs to mind.
That is fine.
Good morning. The former judicial complaints reviewer commented on the possible implications of the publication of recusal information in respect of possible conflicts of interests only becoming apparent after a case has been heard. Her view was that a register of interests could avert complaints by enabling any perceived conflicts to be addressed before or at the time when a case was heard. What are your views on that?
Let me go back to the House of Lords and the Supreme Court. One reason why I raise an eyebrow at the stance of the Supreme Court on this issue is that one of its shakiest moments was the General Pinochet affair. General Pinochet came to the UK for medical treatment and a Spanish judge using appropriate international processes arranged for him to be arrested for alleged crimes in the junta in Chile. His case then went up to the House of Lords. At relatively short notice, the membership of the panel that was to hear the case had to change and Lord Hoffmann was brought in as the next most senior judge. The fact that Lord Hoffmann’s wife worked for Amnesty International in some capacity was—we think—known by the senior law lord when they organised the panel. However, it was all done with some haste, and it is not at all clear that the panel was aware—they said that they were not aware—that Lord Hoffmann acted on a committee that raised funds for Amnesty International.
Amnesty International is relevant here because of its views on torture; it had asked to become an intervener in the House of Lords, and this was the very first case in which an intervener had been allowed. That meant that Amnesty International, although not technically a party to the case, was allowed to address the court on issues to do with torture and what had happened in Chile. Lord Hoffmann did not declare that he chaired a committee that raised funds for Amnesty International although his wife’s position, as someone who worked for Amnesty International, was known to the authorities.
09:15Anyway, the case went ahead, and the vote went three to two against General Pinochet, with Lord Hoffmann in the majority. A little while later, General Pinochet’s lawyers discovered that Lord Hoffmann had that interest but had not declared it, and they asked for a rehearing. It had never happened before, but they got a rehearing, and the court very strongly made it clear that Lord Hoffmann should have declared the interest. Indeed, as I read it, even if he had declared the interest, the parties could not have waived it—it would have led to an automatic disqualification. That is the line that the court took, and another court had to be convened to rehear the whole case.
It all meant a lot of time being taken up, a lot of concern and a lot of bad publicity for Britain and for the House of Lords. Relations among the judges in the House of Lords were quite strained for a number of years thereafter. That one failure to declare an interest had a very substantial impact on a whole variety of issues, and I have never quite understood why the Supreme Court, knowing that lesson—which was hardly 10 years old by the time the court was set up—did not decide that it should have a register of interests.
We can have a debate about whether a register of interests would have caught Lord Hoffmann’s chairmanship of the committee, but I think that it would have, certainly under the rules under which the House of Lords now operates. It is not entirely appropriate, but if you want to see what a possible register of pecuniary interests might look like, you can look on the House of Lords website, where you will find a very detailed series of 12 headings under which interests can be recorded. Not all are appropriate for judges, but some of them certainly are.
A second interesting point arising from the Lord Hoffmann case is not the judge’s own involvement but the spouse’s occupation. That would not go on a register, would it?
Possibly not, but, as I understand it, that was known about in the Hoffmann case.
So that was not the issue.
That is my understanding of the case.
That is very helpful. Thank you.
Good morning, Professor Paterson. The example that you have just given backs up the suggestion in your written submission that the decision on recusals should not be taken by the judge who has been challenged. Would you expand on that?
Again, that is an area on which I do not have a fully formed mind. Like the author R Grant Hammond, who has written the standard work on judicial recusal, I take the view that, as far as appellate courts are concerned, there is an argument for saying that if one member of the court is challenged, he or she should not be the one that makes the decision. However, that might be the counsel of perfection. When it comes to a sheriff in a rural part of Scotland, it might be quite impractical to suggest that another person make that decision. As I have said, I do not have a concluded view on it.
I can see the case for such a move, and it would be easier at the appellate level. There are examples where courts have, when challenged on a particular interest, excluded that interest from the body deciding that interest. I can see the argument for that, but there are issues of practicality to be borne in mind.
On the issue of recusals, let me throw a hypothetical example at you. The son of a judge is the litigation solicitor for a defendant in, for example, the Court of Session, but the judge fails to recuse himself and to highlight the family connection to all interested parties. Clearly such a situation could be avoided were the decision on recusal not to be taken by the judge presiding over the hearing himself. We would look to avoid such a situation, and the register would help.
It might—and if we are talking about a criminal defendant, it would be the High Court. Generally speaking, a relationship would be known to the parties. In the past, it was not unknown for an advocate who was a relative—a son or daughter—of a judge to appear before that judge. In a small country such as Scotland, saying that such a thing could not happen would make things a bit tough. It used to happen. As long as everybody knows about it and it is declared, it should not mean an automatic disqualification. In such situations, all the parties usually know and no objection will be made.
What consideration have you given to the potential for additional costs or delays to cases being heard if the recusal system were to be developed in the way that is proposed?
You are right to raise the issue—that is why I highlighted the practicality issues. Recusal is one of those areas in which it is necessary to have an appropriate balance between transparency, accountability and independence. We have a register of how often judges recuse themselves but, as I have pointed out, we do not know how often they do not recuse themselves, so we cannot form a view on whether they have always got it right or whether there are situations in which they did not get it right.
The test to be applied is whether a fair-minded, fully informed independent observer would think that there was a possibility of bias. It is a case not of whether the judge thinks that there is a possibility of bias, but of whether an independent, fair-minded, reasonable observer—probably a layperson—would think that there was a possibility of the tribunal being biased. It is therefore possible for a judge to take one view and an independent person to take a different one, which is why we must take a hard look at the issue of recusal.
Do I think that the introduction of a register of interests at appellate level would lead to a massive number of challenges and cause real problems? If a system were introduced whereby somebody else had to decide that, I think that it might. As I have said, I think that practical considerations might make my counsel of perfection, whereby in the ideal world somebody else would make the decision, unrealistic. I think that it is more possible at the appellate level.
Are you aware of any serious examples of cases in which the issue has been a significant problem, indicating that the setting up of such a register is necessary?
The Hoffmann case is the standard example of something going wrong. From time to time, challenges to the courts receive a degree of publicity, but I am not aware of any that were as significant as that one.
There are no further questions. Thank you for your helpful and balanced evidence, which has given us an interesting insight into the issues.
Does the committee have a view on what further action we might take?
Given the evidence that we have heard this morning, I think that we need to seek a further response from the Lord President, Lord Carloway. I, for one, would like to hear his views on today’s evidence, either by letter or in person, and I am particularly keen to find out his view on whether the recusal decision should not be taken by the judge who has the interest that has been challenged. Another suggestion has been put into the pot that would be well worth our consideration.
We can look at the most convenient way for the Lord President to provide that response, because we do not want to cause unnecessary inconvenience.
We would not be re-asking the previous question. We would be going back to him with a new request.
Is there anything else that we might do?
There was also the suggestion that we ask the judicial complaints reviewer for her view on the evidence that has been given today. We should go down that route, too.
Do members agree to take those actions?
Members indicated agreement.
Again, I thank Professor Paterson for coming to the meeting. It has been very helpful.
I suspend the meeting for a couple of minutes.
09:25 Meeting suspended.Restraint and Seclusion in Schools (National Guidance) (PE1548)
With the committee’s permission, I am going to change the order of the agenda items because witnesses have been stuck in traffic—that is ironic, as we will discuss transport later. I propose that, to ensure that we hear from the witnesses who have agreed to come, we move now to agenda item 4, which is consideration of continued petitions that do not involve evidence from witnesses. We will simply look at those petitions as a committee.
PE1548, by Beth Morrison, is on national guidance on restraint and seclusion in schools. Our papers include a note by the clerk and the submissions that have been received from the Scottish Government, Dr Brodie Paterson and the petitioner. The Scottish Government’s submission indicates that it intends to publish its guidance as soon as possible. However, in her submission, the petitioner highlights her concerns about the guidance; she also raises concerns about the Scottish Government’s response to the United Nations Committee on the Rights of the Child’s concluding observations and recommendations, particularly with regard to abolishing isolation rooms.
Do members have any views or suggestions on action to take? The petitioner’s response is substantial and quite challenging. It is of concern that, rather than addressing what is at the core of the petition, the Government would simply redefine isolation in order to deal with the question.
We definitely need an update on the publication and use of the communication passport and the toolkit to see where we are with them. The issue is sufficiently important and serious that we should invite the Deputy First Minister to give evidence to the committee.
I agree with that.
09:30
That would be useful. My sense is that the petition was going very well and the petitioner felt that she had had a good hearing from the Scottish Government, particularly the Deputy First Minister, but there is the suggestion that what has been suggested does not match up to that. It is really important for the Deputy First Minister to be able to clarify and allay concerns and cynicism around the matter. How do we manage our obligations under the convention? Is it simply a matter of playing with semantics? I am sure that that is not the Deputy First Minister’s intention, and it would be useful to hear from him in that regard.
Is there anything else that we could do?
Obviously, the Deputy First Minister is looking at schools in a big way, so this is an opportune time to have him in front of us to speak about the subject. That would probably encompass stuff that he is doing.
We can even just clarify whether Dr Paterson has not so much misread the Government’s response as taken wrong nuance from it. The Deputy First Minister would be given a chance to clarify that.
It is a question of confidence. The petitioner is concerned that, if we do not have robust guidance, local authorities will do their own thing. In most respects, they will seek to act in the interests of the child, of course, but we are talking about a very distinct area that we probably want reassurance on. There is the combination of our concerns about what happens to young people in those circumstances in school and our obligations under the convention.
Do members agree to seek an update on the publication and use of the communication passport and the toolkit for practitioners, as Rona Mackay suggested? Do members also agree to invite the Deputy First Minister to provide oral evidence at a future meeting with a view to establishing which aspects of the draft guidance will fall to the Scottish Government and which will be devolved to local authorities to develop their own policies, and addressing what the changes in guidance have been?
Members indicated agreement.
Child Abuse (Mandatory Reporting) (PE1551)
PE1551, by Scott Pattinson, is on the mandatory reporting of child abuse.
Members will recall that when we last considered the petition, we agreed to write to the United Kingdom Government for an indication of the timescale for the publication of its report on its consultation on reporting and acting on child abuse and neglect. We also agreed to ask the Scottish Government how it plans to engage with the UK Government on that issue. Unfortunately, no response from the UK Government was forthcoming, although the Scottish Government’s letter indicated that it might be some time in “early 2017”. Members will have seen the petitioner’s subsequent response.
Do members have any views on what action to take?
We should write again to the Scottish Government and get the information out of the UK Government.
I do not know what the committee thinks about this, but if the UK Government is not going to act, it is still within the Scottish Government’s remit to act. At what point do we stop? I see the logic of waiting for the UK Government, but if it is not going to act, it would be useful to know what steps the Scottish Government will take to address the question.
Is it a devolved issue as well?
Yes.
That approach seems reasonable, although I would like to hear from the UK Government.
I think that the UK Government was going to take action that would allow the Scottish Government to fall in with that and the two Governments to work together. My understanding is that the matter is not reserved, but that that was a practical way forward. If that is not happening, it is reasonable to ask the Scottish Government what it will do instead. There are difficulties with a mandatory approach, but the whole issue still needs to be addressed. It cannot be stalled because we are waiting for somebody to act.
Do members agree that we should write to the Scottish Government to find out its position and, in light of what we have said, what it can do if there is not going to be movement at the UK level?
Members indicated agreement.
In Care Survivors Service (PE1596)
We move to PE1596, which is by Paul Anderson and is on the In Care Survivors Service Scotland. The Scottish Government has provided an update on the roll-out of the new survivors support fund and the access criteria. The petitioner has since provided a submission that outlines his concerns around the loss of trust that has been established over a period of time between service users and counsellors, the potential loss of specialist skills and cost effectiveness.
I should perhaps declare an interest as a member of the cross-party group on adult survivors of child sex abuse.
There is no doubt that this continues to be an issue of concern for survivor groups. What action does the committee feel it might be useful to take?
I should also declare an interest. As the local member, I have had a number of meetings with Open Secret, which is based in the Falkirk district.
The issue has been on-going for some time. It has been good to get some further clarification from the Scottish Government. The letter, which I think came through just yesterday, highlights that the funding that Open Secret has received in November and December
“represents over 50% of the funding Open Secret would normally receive from Scottish Government for a whole year’s service delivery.”
That aside, there are clearly still issues with regard to service users wishing to continue to receive the service from Open Secret. If the service gradually diminishes, that may become a serious issue.
In the light of the petitioner’s concerns with regard to cost effectiveness and the potential loss of the skills that Open Secret has been providing for a number of years, I think that we should write to the Cabinet Secretary for Education and Skills to seek clarity on the interim finance arrangements that have been put in place for Open Secret.
I support that suggestion. I also declare an interest, as the petitioner is a constituent of mine and I have had contact with him. There needs to be some clarity for service users on the long-term sustainability of funding. I support taking the action that my colleague suggests to get that clarification.
I agree with that, too. I also declare an interest, as I have spoken with Paul Anderson about the petition. I think that the approach that Mr MacDonald has suggested is the best way forward.
I think that there is a continuing issue with the model that is being used to support survivors, as it is not just a medical model. The argument is that people are not necessarily ill—they are responding to the circumstances in which they have found themselves. We therefore need reassurance about the variety of supports that are available. That may be slightly beyond the remit of the petition, but the issue of the breaking of trust is an important one.
I think that it goes beyond a physical medical condition. That is where there is a bit of a grey area.
Hugely specialist and excellent organisations such as Open Secret have developed the kind of supports that I describe.
Will we write to the Cabinet Secretary for Education and Skills—he will be a busy man—to seek clarity on the interim finance arrangements and the other issues that have been highlighted in the petition? There is a suggestion that we refer the petition to the Education and Skills Committee. However, if we were to refer it, I think that we would need to let it go. Shall we therefore wait and hold on to it? Is there anything else that we should do? We should perhaps underline to the petitioner and others that we regard this as an important issue and that we hope that he can get a resolution. Is that all agreed?
Members indicated agreement.
09:38 Meeting suspended.Air adhart
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