THE man who is leading the transparency campaign for Scotland’s judges to register their interests now says the idea should be extended to everyone who sits on a public tribunal.
Peter Cherbi will shortly pass the five-year mark in his campaign via the Scottish Parliament’s Petitions Committee for there to be a judicial register of interests, similar to those registers already in existence to which all elected politicians and police officers must conform.
The register proposal has been strongly resisted by senior judges and other top lawyers, but is supported by politicians from all parties – the Petitions Committee has taken considerable amounts of evidence and is due to debate the plan again shortly.
Now Cherbi, who is well-known in Scottish legal circles for his blogging and campaigning for reform of the Scots law system, says that tribunal members should also have to declare their interests.
Under the present system of appointments to tribunals it is up to members themselves to declare an interest if, for example, they have personal relationships with those appearing before them, and step aside from a case – known as recusal.
There has been considerable re-organisation of the tribunal system in Scotland since the Tribunals (Scotland) Act 2014 simplified the statutory framework.
The First-tier Tribunal is organised into a series of chambers. From December 1, 2016, the Housing and Property Chamber was established and took on the functions of the former Home Owner and Housing Panel and the Private Rented Housing Panel.
From April 24 this year, the Tax Chamber was established and took on the functions of the former Tax Tribunals for Scotland.
The Upper Tribunal hears appeals from the First-tier Tribunals and the head of the whole system is Scotland’s most senior judge, the Lord President, Lord Carloway, with the Rt Hon Lady Smith as president of the Scottish Tribunals.
Others tribunals include the Mental Health Tribunal, the Additional Support Needs Tribunal, the Council Tax Reduction Review Panel and the Lands Tribunal. More tribunals will come with greater devolved powers but employment tribunals are still under the control of the Westminster Government.
Cherbi says all such public tribunals should be open and transparent about their members’ interests and points out that there is no register of recusals for any of the tribunals.
He said: “As should the judiciary now declare their interests in a publicly available register, members of tribunals who are engaged in the business of judging others should declare their full interests and any instances of recusals in a publicly available register.
“The business of judging others – for it surely has become a business over the years – must now be subject to the same public expectation of transparency and accountability as tribunals apply to those appearing before them.
“The public, the media and our democratically elected politicians in our Parliament, as well as those who are judged, have the right to view, be informed about, and inspect those who judge society with unchallenged power in equal light.
“And this is not just about Scottish Tribunals. Take for instance DLA appeals and PIP appeals. The tribunal structure which covers those are riven with huge, wealthy interests, yet there is no register and no ability for those appearing before them to inspect those who sit in judgement upon their claims.
“I looked at a Department of Work and Pensions Tribunal comprising a surgeon, a lawyer and a ‘disabled’ tribunal member – accumulated wealth between the three, their partners and businesses and properties totalled well into the millions, yet claimants, some with no limbs who are struggling to claim an extra £30 a month, get knocked back while tribunal members are paid expenses and remuneration and we know nothing of it.”
A Scottish Government spokesman said: “We consider that a specific register of interests is not needed. Existing safeguards, including the Judicial Oath, the Statement of Principles of Judicial Interests and the system of complaints against the judiciary, are sufficient to ensure the impartiality of the judiciary in Scotland.”
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