The recent announcement of the Judiciary & Courts (Scotland) Bill has both the judiciary and critics up on arms over what's in and what's out of the legislation, which comes from the reviews of the previous Scottish Executive.
Peter Cherbi reports on the issue from his blog A Diary of Injustice in Scotland :
The definition of the word "independent" certainly takes a tumble when it comes to matters involving the Scottish legal establishment - as a judge is put in charge of a planned new complaints procedure system against judges & sheriffs, long resisted by the judiciary to the point of threat of legal action.
Certainly while the limited moves to reform Scotland's 'law unto itself' judiciary are welcomed, the lack of reforms to the way members of the judiciary are appointed, and regulated, are disappointing to say the least. In essence, the accountability of the judiciary will still rest with, the judiciary in the proposed Bill.
The Judiciary & Courts (Scotland) Bill, will see the current Lord President, Lord Hamilton, made head of the Scottish Judiciary, along with taking on responsibility for all court business, conduct issues involving complaints made against sheriffs & judges, while also guaranteeing statutory independence for the judiciary.
Read more here on the Judiciary & Courts (Scotland) Bill from the Scottish Government in acrobat pdf format : Proposals for a Judiciary (Scotland) Bill
On the face of it, not too bad a deal for the judiciary then, who have long threatened rebellion, even legal action, against any proposed reforms to the judicial bench, or even any prospect of an investigation into the judicial bench
In fact, the judiciary have long felt strongly over the issue, or even just a 'thought' about judicial reforms, an example of which in 2001, where the Sheriffs Association threatened the Justice 1 Committee of the Scottish Parliament, Chaired by Christine Grahame (SNP) MSP that even if only the Committee investigated the status of Sheriffs, there may be legal action under Article 6 of ECHR - no surprise then that Ms Grahame's Justice 1 Committee held a meeting in private and then extracted the Sheriffs from their "regulation of the legal profession" inquiry, which to all purposes was ran by the Law Society of Scotland anyway, and also saw members of the public embargoed from testifying in public over their difficulties with the legal system.
You can read the Sheriff Lockhart's letter to Christine Grahame's Justice 1 Committee who were carrying out their 2001 "Regulation of the legal profession"
cover up inquiry ordering them not to consider investigating members of the judiciary on the Scottish Parliament's own web site here : Secretary of the Sheriffs Association Sheriff Lockhart's letter to the Justice 1 Committee "Regulation of the legal profession" inquiry 2001
Threatening legal action against the Parliament and Government seems to be a hobby for members of the legal establishment, where, when faced with the loss of control over part of the complaints system against solicitors, Law Society Chief Executive Douglas Mill threatened the Parliament & Executive with legal action if the Law Society wasn't allowed to remain supreme regulator of the legal profession.
My coverage of Douglas Mill's threat of legal action over losing complaints regulation : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill
Douglas Mill, as you all know, brought in an English QC - Lord Lester of Herne Hill, to author an opinion it was 'against a lawyers human rights under ECHR' for anyone else except a lawyer to investigate a complaint against a lawyer ! - a desperate move which didn't succeed in preventing the relevant legislation contained in the then Legal Profession & Legal Aid (Scotland) Bill from being passed into law in late 2006.
So you see, the legal establishment do have a track record in threatening legal action against any prospect of reforms to the way they regulate or conduct themselves - hardly something one could call acceptable in a democracy ?
Douglas Mill, who can't go quick enough as Chief Executive of the Law Society, according to some lawyers themselves, even lied to Parliament over the Law Society's interference in claims & complaints against crooked lawyers ... so if the legal establishment feel themselves brave or strong enough in their power to lie to Parliament & Government Ministers, on camera - how can they ever be trusted ?
My coverage of Douglas Mill's misleading testimony to the Scottish Parliament & the confrontation with John Swinney : Law Society boss Mill lied to Swinney, Parliament as secret memos reveal policy of intervention & obstruction on claims, complaints.
Given the Scottish taxpayer will be pumping in a few million pounds a year into the new Scottish Legal Complaints Commission, which saw the same Lord President recently help with the appointments of its members, mainly lawyers, ex police and other figures to 'independently' investigate complaints against Scottish solicitors, it might have been more effective to hand over the complaints & investigation process involving complaints made against the judiciary to the new 'independent' commission .. at least taking the judges themselves out of having responsibility for the procedures, which surely are something of a conflict of interest.
However, it appears giving an 'independent' body any oversight or regulatory role in matters involving the judiciary is one step too far for Scotland's judges, who are as intent as Douglas Mill, the current (resigning soon) Chief Executive of the Law Society of Scotland in maintaining control over regulatory matters for themselves .. as well as appointments of their colleagues, and every other matter involving the judiciary.
One of the arguments for the Judiciary & Courts Bill, is to guarantee the independence of the judiciary in statute. That is of course a good and necessary thing. No argument there - but there has to be transparency & accountability, and who is going to guarantee that ? the judges themselves ? ... I think not, as we have all suffered the legal profession's attempt to do that over the decades by way of the Law Society of Scotland investigating complaints against lawyers - a very corrupt arrangement indeed, as many media outlets have reported over the years - and many of us Scots have experienced first hand.
I have covered at length previously how the Law Society have investigated complaints against lawyers, here are some examples :
Quoting today's Scotsman article : "The bill also aims to modernise the machinery for sacking judges and sheriffs, who have long been considered "above the law", on the grounds of unfitness for office. Under the proposals, they would be investigated by a tribunal chaired by a judge and containing a lay element."
Yes indeed, the Law Society of Scotland have lay members on their Complaints Committees - and they have done not one bit of good whatsoever - usually always siding with the lawyer element to get crooked lawyers off the hook, and even bizarrely changing their decisions to prosecute, after secret intervention from senior members of the Law Society itself.
In short, the lay element of regulation does not work, when it comes to professions such as lawyers, accountants and other 'self regulatory' professions which certainly qualifies as a good description of the way the judiciary handles complaints against itself ...
I have reported on matters regarding the 'lay element' of Committees involving the legal and accounting professions before - where these two professions regularly swap individuals and senior members, to ensure complaints against each other's respective members are covered up to the nth degree.
Oh, and if you are wondering about how the new Scottish Legal Complaints Commission lay membership qualifies as independent, read the following article, which reveals that 'independence' or 'lay membership' when it comes to all matters legal, is anything but.
While of course, the Lord President and the judiciary should be independent of Ministers, the relationship between Minister & the Lord President seems to come in handy for the legal establishment when for instance, the Lord President and Justice Secretary sit down together to cancel any applications for rights of audience & representation made under Sections 25-29 of the Law Reform (Miscellaneous Provisions) Act 1990, which were implemented only after a long campaign from the legal profession to keep them off the law books, ensuring that only lawyers and the legal profession could grant the public access to justice & legal services.
In fact, so intent was the legal profession on maintaining a closed shop of legal services, a serving Lord Advocate, Lord Hardie recommended repealing of Sections 25-29 to keep the lawyers monopoly on the publics use of legal services, a tradition the current Justice Secretary, Kenny MacAskill, and the Lord President have been continuing, by vetoing all applications for entry into the legal services market since the 2007 implementation of Sections 25-29.
So, the Lord President & Ministers get along fine when it comes to excluding the public from freedom of choice of legal services ... but not when it comes to regulation of the judiciary ...
To quote the Scotsman article once more : "It is likely a code of conduct will have to be drawn up, governing the conduct of Scotland's sheriffs and judges."
If that code of conduct is anything like the one used by the Law Society of Scotland, it will be as much use as no use, and will even contain such things as the ability to make & change rules as they see fit ... a great vote for transparency & accountability ...
Independent regulation of the judiciary and an independent appointments process - a few 'great democracies' seem to get along with it fine ... across the Atlantic for instance ... so how about some 21st Century reforms for the legal establishment in Scotland .. not 17th Century reforms as we seem to be getting ...
Finally, a brief note on something which has been raised in comments to my article on the Douglas Mill resignation.
Yes, its true the Law Society are out for revenge over John Swinney's questioning against Douglas Mill before the Justice 2 Committee over the Law Society's interference & intervention in claims & complaints against crooked lawyers.
Some documents currently in circulation, with an origin from 'legal quarters', seem to be an attempt to discredit individuals who have taken a stand on certain issues. This is nothing new, we have had this before, and we will have it again. This is the legal profession's way of defending itself - resorting to dirty tricks when things don't go its way and mounting highly personalized campaigns against people to 'discredit them'.
Whatever the Law Society tries to do against Mr Swinney, or anyone else who has taken a stand on such issues, will only undermine the legal profession itself and their position, while hopefully at the same time, kicking into touch the Justice Secretary who still seems to be so in love with the Law Society and his legal colleagues. After all, the Justice Secretary can hardly go around praising the very profession which seems to be bent on causing trouble for one of Scotland's most capable politicians as many of you have pointed out in emails to me today.
Good thing its all on video, isn't it ...
The Scotsman reports :
By Michael Howie
SCOTLAND'S judiciary will undergo one of the biggest overhauls in legal history under new legislation designed to protect judges and sheriffs from ministerial interference.
The Judiciary and Courts (Scotland) Bill, published yesterday, proposes to make the Lord President, currently Lord Hamilton, the head of the Scottish judiciary, with overall responsibility for all court business.
If approved by MSPs, the bill will, for the first time, place a statutory duty on the First Minister to safeguard judicial independence.
However, the radical proposals will also see members of the bench subject to a formal complaints procedure to deal with allegations of misconduct.
For the first time, witnesses and accused who feel they have been mistreated by a sheriff or judge will be able to trigger disciplinary proceedings which, in extreme cases, could result in the official being removed from their post.
The bill proposes to move responsibility for the running of the Scottish Courts Service from ministers to a new board that will include judges and be chaired by the Lord President.
The historic move last night appeared to have eased fears that the Lord President would become increasingly dependent on the support of government-selected civil servants, blurring the lines between two pillars of democracy which have existed in Scotland since the 1500s.
The moves will give judges greater freedom to put forward their own policy ideas to ministers regarding how key areas of the justice system should be run.
The bill also aims to modernise the machinery for sacking judges and sheriffs, who have long been considered "above the law", on the grounds of unfitness for office. Under the proposals, they would be investigated by a tribunal chaired by a judge and containing a lay element.
It is likely a code of conduct will have to be drawn up, governing the conduct of Scotland's sheriffs and judges.
Some sheriffs are thought to be opposed to the move, believing it is an attack on their independence as they will constantly have to watch what they say.
However, ministers have rejected that charge, insisting sheriffs and judges should be subject to the same rules about decent behaviour that govern other office-bearers.
Kenny MacAskill, the justice secretary, said the bill would "strengthen and modernise" the judiciary, adding: "The legislation is of constitutional significance (and] considers the relationship between the judiciary and other branches of government."
Lord Hamilton, who welcomed the bill, said: "I believe the bill presents an opportunity for the Scottish Parliament to make law of considerable constitutional significance, which will place the relationship of the judiciary with the Scottish Government, and with the parliament itself, on a new footing."
He said there had been dialogue over the proposals between judges, ministers and officials for two years, adding: "That dialogue has been constructive and allowed for detailed and productive discussion on the full range of topics in the bill.
"Of course, that does not mean the senior judiciary agree with each and every detail of it. We shall wish to study its provisions carefully over the next few months and listen to the views of others about the bill, all with a view to our making suggestions to the parliament as to how its provisions might be improved."
One leading QC, Paul McBride, said the proposals would help to bring "errant" sheriffs and judges to book. "This is more to do with the conduct, both on and off the bench. It will allow errant people who behave inappropriately to be brought to account.
"But, vitally, they will still be able to take decisions that will be unpopular among our political leaders."
He said the legislation represented the "biggest review there has been of the role of judges and sheriffs in a modern society".
"The hope is that judicial independence will remain and be strengthened – but that if there is judicial incompetence, there is a process by which such a person can be removed from office."
• Statutory guarantee of judicial independence
• Make Lord President head of the Scottish judiciary with responsibility for court business, training, welfare, deployment and conduct
• Make Scottish Courts Service a non-ministerial department run by board chaired by Lord President
• Formal complaints procedures for conduct issues involving a sheriff or judge
• Streamline procedure for considering fitness for office of judges and sheriffs