The Scottish Government opposed the proposal, taking the view that existing safeguards (the judicial oath and the statement of principles of judicial ethics) were sufficient. It was therefore curious to see the SNP’s 2021 election manifesto say that “to improve transparency and trust in the judicial system, we will create a register of interest for members of the judiciary.”
Two Lord Presidents have already provided strong arguments refuting the necessity and the efficacy of such a register. In November 2015 Lord Gill, former Lord President, gave evidence to the Public Petitions Committee of the Scottish Parliament. In June 2017, his successor Lord Carloway did so too.
The only necessity in compelling judges and sheriffs to disclose their financial interests to outside scrutiny is that either they cannot be trusted to recognise a conflict of financial interest when they see one or that they would proceed to hear a case despite their recognising the existence of one. They would be either fools or knaves, in other words. Undoubtedly, as Lord Gill observed, creating an obligatory register of financial interests infers that some on the Bench are considered to be unfit to hold that office. If anything, introducing mandatory disclosure would surely undermine rather than enhance public trust in the calibre and character of the judiciary.
Courts exercise common sense in these matters. It is fanciful to suppose that members of the Bench might be clamouring to hear a case in which they have a personal interest. In my own experience there is, if anything, an over-zealous desire to avoid such situations; sheriffs are never slow to recuse themselves (also known as “declining jurisdiction”) where there is the merest whiff of a conflict of interest in terms of a personal connection with the subject matter, the outcome, a party or a witness.
If this results in their avoiding having to listen to a three-day proof on the technicalities of a building contract or a neighbour dispute between squabbling party litigants, it is no doubt a hardship that they can bear. Sheriffs should not be further discouraged from hearing cases. The proposed register may lend itself to an even greater reluctance on their part to risk an objection, appeal or complaint from a disgruntled party. It may give litigants greater scope to “forum shop” as Lord Carloway puts it, with the risk of jeopardising the management of court business.
Another point made by both their Lordships is that the existence of a register of financial interests would not make the slightest difference in disclosure of a myriad of other issues where there could be a perceived conflict of interest. Both observed that most recusals concern social connections with parties or witnesses. Family links will also lead to a sheriff declining jurisdiction, which is important given that lawyers often inter-marry. The previous Lord Advocate was married to a serving judge. So is his successor (to a different judge, it should be emphasized).
None of this is to deny that some sheriffs may sometimes be influenced by irrelevant outside factors. Sadly, our courts have not always been free of the pernicious presence of sectarianism. Bar officers, who escort sheriffs within the court, are often a rich and unguarded source of information. I recall undertaking a proof in Hamilton Sheriff Court in which such an official informed me, during a break in proceedings, that his Lordship disliked the colour of jumper worn by my client. This unfavourable opinion may have been attributable to aesthetic taste rather than the hues of the Old Firm, but a register of financial interests would not have helped unravel this mystery.
Unless it is being suggested that the judiciary must in addition to property and assets, gifts, hospitality and trusteeships disclose the profession of their friends and relations, their own religion, politics, cultural links, heritage, any football allegiances, their membership of sports or social clubs, and the like, a register of financial interests is a token gesture, pointless, and likely merely to risk damaging the reputation and standing of the judiciary.
Andrew Stevenson is Secretary, Scottish Law Agents Society