Reforming Scotland's Judiciary at the point of a Judge's Gun
I'm beginning to wonder when the ghost of Roland Freisler is going to be dragged out by Scotlands desperate lawyers & judges, to defend the 'self-given' right of Scotland's legal fraternity to recommend, appoint & regulate its fellow members of the Judiciary .. such is the dictatorial way & lack of honesty with which the legal establishment protect their own privileges.
When one mentions the word reform, one expects a little more than what we usually get, and this is certainly the case with the proposals for reforming Scotland's antiquated Judiciary which you can view in pdf format at : Judiciary (Scotland) Bill
Don't expect things like, open transparent selection of Sheriffs & Judges ... no we won't get anything like that .. and you can forget a decent code of conduct on how those on the Bench are to behave in Court ... that would be like going back to ancient Rome & asking the lions not to eat those thrown into the Circus Maximus.
Why no real big changes then ? - because the Judiciary don't want change, that's why.
Unsurprisingly, the Lord President is being put in charge of most of the operation - this to throw off the notion there could be any 'political interference from Ministers & the Executive in issues of regulating & selecting the Judiciary, and also, particularly the issue of regulating conduct issues, which will see a Tribunal, chaired by a Judge and composed mostly of - yes you guessed it, fellow members of the legal profession, investigate the conduct of the Judiciary in terms of complaints, behaviour & other issues. There will be one lay member on this 'Tribunal' - I understand possible candidates include Judges pets, (excepting those which have more than four legs), and the deceased.
This Lord President is going to be a busy chap then .. because he's also been put in charge of appointments to the new Scottish Legal Complaints Commission, so we will have to be on the lookout for bent staff migrating from the Law Society of Scotland to the new SLCC, posing as those 'unrelated to the legal profession' .... and from a hot tip earlier this week, I understand the Law Society's plans for infiltrating the new SLCC are well underway ... which begs the question, will the Lord President be told to let the Law Society's chosen 'independent' investigators & staff through the gates on a nod & a wink ?
A quote from the Executive in the Scotsman article states : "The public expect a certain standard of conduct from the judiciary and we believe having a lay member on the tribunal would give the public greater confidence in the judicial system,"
Well, yes we do expect a certain standard of conduct from our Judges - but we haven't had that before now, have we ? .. and we certainly aren't likely to get it while the likes of Lord McCluskey and the rest of the legal profession have their way in protecting any of their colleagues in true crooked lawyer protects crooked lawyer fashion.
The Sheriffs Association oppose all this too of course, and no wonder, since all their members are former lawyers - some with quite disgraceful regulatory histories, all covered up by the Law Society of Scotland so they can progress to the Bench and be an even more powerful spokesperson for the legal profession.
Incidentally, the Sheriffs Association threatened the Justice 1 Committee/Parliament with Court action in 2001 if they went ahead with an investigation/review of Sheriffs & the Judiciary.
We also had these same protests from the Judiciary last year - well organised by the Law Society of Scotland & the rest of the legal profession, where McCluskey & the many more Chernenko types came out to threaten the public good & protest over any reforms to the way in which the Judiciary does its business ... claiming of course, it would breach their own 'independence' from Government and also the question of if being against the Judiciary's Human Rights to fiddle complaints against their colleagues came into it ...
Why then, are the Sheriffs & Judges so hell bent on protecting their extensive legal empire ?
Well, the fight certainly parallels the problems which the Legal Profession & Legal Aid (Scotland) Bill suffered, in terms of the Law Society motivating all its allies under it seems heavy payment, to defend their right to self-regulation & fiddle complaints against crooked lawyers.
Just about everyone, from FibDem Peers to University Professors, to escapees from Robert Mugabe were brought out to intimidate the Scottish Parliament on that one - capped by the act of Douglas Mill, Chief Executive of the Law Society of Scotland, threatening the Scottish Parliament with Court action on ECHR grounds if it didn't pass certain amendments from Law Society mouthpieces in Parliament such as Bill Aitken - who wanted to all but kill off the proposed increases in fines for crooked lawyers.
One of the main weaknesses of the Judiciary, is their past - what they got up to when they were lowly lawyers ... running around the Courts, representing clients, and doing what comes naturally to Scotlands army of solicitors .. and we all know what that is ...
How would you feel, if you knew that a lawyer who had embezzled your money, was being tried in front of a Sheriff, or Judge, who himself, had amassed a long list of client complaints during the time when he was a lawyer, some of those complaints relating to embezzlement, which were of course swept aside by colleagues at the Law Society of Scotland under the corrupt system of lawyer investigates lawyer.
If you were a 'pursuer' in such a case, against a crooked lawyer as I have written of above, you would be a bit upset, wouldn't you ? perhaps, you might wonder if there was a conflict of interest ? right ? YOu might even wonder why that Sheriff had actually got his job ?
How about this ....
A Sheriff tries a rapist - or maybe sex offenders, yet has been implicated by his own wife in charges of alleged rape, which the local keystone cops refused to investigate because of the Sheriff's position & connections ?
Just think of the havoc that one could cause ... lawyers would be able to heave that Sheriff off the Bench in hearing any such case immediately .. oh but wait a second there .. it's happened .. and the lawyers did nothing .. just why was that now ? Want me to name the case ?
Yes, the issue of 'regulatory histories' has to be one of the main weaknesses of the Judiciary in terms of their service as a lawyer, but conveniently, there is no need for a disclosure of said regulatory history to the Executive prior to a Sheriff being appointed, soo one gets to know what some of those up on the bench have been up to in the past.
I suspect if someone was brave enough to do the story in the press, there might just have to be a few early retirements ...... however, given the way the Scotsman has swung in the legal debate, I think it may well be up to us bloggers & 'resistance members' to dish the dirt on some of those wigs up there which really shouldn't be running our political system - because we don't elect them.
If Lord McCluskey is so concerned with the public good, and Justice, and clearing up the sins of his colleagues ? I wonder if he would sign my petition to the Scottish Parliament ? PE1033 awaits you, Lord McCluskey in it's e-petition format .. show your true colours and support a review of the conduct of your legal profession colleagues against members of the public ... oh wait .. perhaps not .. there might just be a few lawyers among the list of cases of injustice which have been 'elevated to the Bench' ... I wonder indeed how that one is going to be answered !
Articles from the Herald newspaper & Scotsman to follow - good thing we have the Herald, everyone .. for that more impartial view on things in the legal world.
Ministers bow to pressure over judicial reforms
DOUGLAS FRASER, Scottish Political Editor February 15 2007
Ministers have bowed to pressure from lawyers over judicial reform, promising statutory protection for judges' independence.
The executive further accepts that Scotland's top judge, who is to take charge of the entire judiciary including sheriffs, should also have some say - so far unspecified - in the running of courts.
The executive has also limited the amount of interference that ministers are allowed to have in the decisions of the judicial appointments board, only getting involved in "procedural matters". But they will retain the power to appoint its members.
That remains a major concern for lawyers, who fear that any such ministerial appointments run the risk of political interference in the choice of those appointed to the bench, and also in strengthened powers to dismiss judges and sheriffs on the grounds of unfitness for office.
Their fears were one of the reasons why the Judiciary (Scotland) Bill was withdrawn from the legislative timetable. A revised version was published yesterday, for the incoming administration to take on after the May elections.
It is part of the raft of justice reforms, including High Court and summary court reforms, with a review announced this week of the civil courts as well.
The executive wants Lord Hamilton, as Lord President of the Court of Session, to take charge of a more streamlined and managed judicial administration, but had planned to keep the Scottish Courts Service in civil service hands, answerable to ministers. Since the original plans were withdrawn last autumn, the executive has moved ground on that, under pressure from Lord Hamilton, who has argued he cannot manage the judiciary while having no formal role in the Courts Service.
The proposals set out yesterday by Justice Minister Cathy Jamieson include the power of a tribunal, chaired by a judge and with at least one lay member, to investigate the case for dismissing another judge or a sheriff. The lay member is intended to increase public confidence in the judicial system. It would be for parliament to vote on the recommendation of the tribunal. That change was opposed by the Sheriffs' Association, which argued for no change in the present system, which sees two senior judges investigating a complaint.
A further change from the proposals published last year is that the plans for a statutory judges' council, to gather the collective view of those on the bench, have been dropped. Instead, Lord Hamilton is setting up a non-statutory council.
Executive plans judicial revamp
SCOTLAND'S most senior judge is to be put in overall charge of the judicial system under draft legislation published by the Executive yesterday.
The Judiciary (Scotland) Bill would also modernise the machinery for sacking judges and sheriffs 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.
"The public expect a certain standard of conduct from the judiciary and we believe having a lay member on the tribunal would give the public greater confidence in the judicial system," said the Executive.
This tribunal would make a recommendation to ministers and an order would ultimately be made by parliament.
The change was opposed by the Sheriff's Association, which argued for no change in the present system - under which investigation is carried out not by a tribunal but by two senior judges.
Scotland's current senior judge is Lord Hamilton, the Lord President of the Court of Se ssion.
The proposals have no chance of being passed before the May election but the justice minister, Cathy Jamieson, said they provided "options for action" by a future administration.
The reforms include a statutory guarantee of judicial independence, putting the judicial appointments board on a statutory footing, and giving the Lord President a new role as head of a unified Scottish judiciary.
... and finally, if you can stomach more ... Lord McCluskey's letter in today's Scotsman.
Scottish Executive disregarding expert opinion on the draft law reform bill
I was more dismayed than surprised by the announcement that the Scottish Executive has published the draft bill to "reform" the relationship between the judiciary and the Executive.
The main proposals contained in it were published last year under the title, "Strengthening Judicial Independence". Although only 90 days were allowed for the so-called consultation, the people who know and understand the system in Scotland strongly condemned most of the changes. The grounds for condemnation, contained in the published responses, are too numerous and detailed to repeat here. I shall try to outline them.
Many of them disagreed absolutely with the pretence that the new proposals are intended to "strengthen" judicial independence.
First of all, it doesn't need strengthening; it has a centuries-old tradition of strong independence.
Secondly, does anyone really imagine that ministers honestly want to make judges more independent? On the contrary, ministers on both sides of the Border are for ever criticising judges. Ministers want to exercise pressure on judges, and seek to do so by changing the machinery for appointing, dismissing or promoting judges: that is the machinery for removing independence by threatening administrative sanctions, including dismissal.
Thirdly, the new arrangements will be expensive, time-wasting and bureaucratic.
Fourthly, they are designed to turn leading judges into administrators, acting jointly with civil servants.
Fifthly, these proposals ignore not only the views of those who have been in the courts daily for decades but also the carefully considered views of the Royal Commission that sat for several years under the chairmanship of Lord Hughes. Many other criticisms have been advanced, and are being ignored by the Executive.
The political tactic is clear. The Executive publishes the bill now, in the run-up to the elections in May; it contains the original, much-criticised, proposals but ignores the criticisms. If returned to power in May, ministers will claim they have the support of the electorate for the provisions in the bill. In truth, not one voter in a thousand will have read the proposals or seen the bill. Few would have the knowledge or experience to grasp their true character or effect. Fewer still will have heard the views of the critics of the bill. But ministers will then claim that the bill has somehow gained democratic support and will ride roughshod over the considered objections.
The late John Smith took the first devolution bill through the Commons. I was privileged to play a considerable role in the relevant debates in the House of Lords. The 1978 Act carefully preserved the judiciary and the law officers from ill-considered initiatives by the devolved administration. The 1998 act unfortunately abandoned that concept. It saddens me to see that this administration is determined to disregard the wisdom of those who have real experience of how the justice system should be administered and to act in this fashion to bring the judiciary to heel.
JOHN (LORD) McCLUSKEY, House of Lords, London