Chic Brodie MSP

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Meeting of the Parliament 09 October 2014 : Thursday, October 09, 2014
Chic Brodie (South Scotland) (SNP)

This has been an interesting and necessary debate, as Joan McAlpine pointed out. I anticipated that it would be.

I make it clear that the intention of the petition—and the debate—was not to impugn the independence, integrity or credibility of the judiciary. Indeed, the very opposite has been clear from members’ speeches. Members talked about openness and transparency. They talked about perceptions, clarity and trust, and the need for change. Their comments reflected concerns of members of the Public Petitions Committee.

As members said, the debate arose from the petition that Peter Cherbi lodged, which called for a register of interests for members of Scotland’s judiciary. The petition called for a register of pecuniary interests, and it suggested amending legislation so that declarations could be made in relation to general interests and hospitality.

It is perhaps instructive to consider the history of the position vis-à-vis the Parliament’s power to call for witnesses and—importantly—documents. Under section 23(7) of the Scotland Act 1998, the Parliament

“may not impose”

a requirement in that regard on

“a judge of any court”.

From reading the Hansard of debates on the Scotland Bill, it seems that there was little debate about the rationale for exempting the judiciary, although the current Advocate General for Scotland suggested at the time that the Parliament should be able to compel witnesses to attend and produce documents.

The provision was intended to protect the judiciary’s position in the constitution. The impartiality of the judiciary in Scotland would be secured, and in the event of a potential conflict of interest a judge would necessarily recuse himself or herself from a case. Of course, that relies on the judge himself to determine whether he has relevant interests, but the approach tends to cover all relationships, in the way that the minister described, rather than just monetary and hospitality considerations.

There are some safeguards to ensure judicial impartiality, which might mitigate and temper suggestions of impropriety by members of the judiciary because of a lack of transparency regarding their interests, particularly pecuniary interests.

We have mentioned the judicial oath, in which judges swear that they will

“do right to all manner of people … without fear or favour”.

There is also the Judiciary and Courts (Scotland) Act 2008, which sets out the rules that may be invoked if it is felt that a judicial office-holder is not acting impartially. Section 28 of that act allows the Lord President to make rules for the investigation of complaints about the judiciary, a matter to which I hope to return briefly.

Thirdly, there is the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”, which was revised in May 2013 and is to be used as a guide for holders of judicial office in Scotland. Enshrined in that document is, perhaps, the basis of the petition and of an understandable perception—or, indeed, misperception—that underpins the petition and gives rise to concern.

Section 4.9 of the statement says:

“it is recognised that a judge may, from time to time, legitimately be entertained by legal, professional or public organisations or officeholders, in furtherance of good relations between them and the judiciary as a whole, or representatives of it.”

What on earth does that mean? It goes on:

“Furthermore, nothing said here should be understood as inhibiting judges from accepting invitations to give lectures, addresses, or speeches of a non-legal nature at dinners, or other occasions, or … from accepting … hospitality, tokens of appreciation for their efforts, or appropriate expenses of travel or accommodation.”

That, in itself, is okay but openness and transparency of information would eliminate some of the misperceptions that matter.

In addition to those safeguards, the Council of Europe GRECO stated that it found no

“element of corruption in relation to judges”.

However, one might argue that that was not the charge; rather, it was that a register might secure the transparency that would make the group’s evaluations redundant.

The petition raised and raises several questions, none of which requires a defensive posture. For example, the board members of the Scottish Court Service, three of whom are judges, already declare some interests in the SCS annual report. We also understand that the SCS staff are required to register all of their interests. I fail to understand why that cannot be extended to cover the whole of the judiciary.

The Judiciary and Courts (Scotland) Act 2008 set up the role of the Judicial Complaints Reviewer to review the handling of investigations into the conduct of the judiciary. The previous holder of that role—a role that should be much more robust and recognised as important—indicated that, in the interest of general transparency, a register of interests for the judiciary would likely lead to an increase in public confidence and trust—two of the words that I mentioned at the beginning of my speech.

The practice extends not only to the SCS but to the Crown Office and Procurator Fiscal Service, which operates a register of hospitality interests, and to the Scottish Legal Complaints Commission, which publishes a full register of interests and hospitality.

We accept that the petition called for a register of pecuniary interests. It recognised that we would not need to try to capture all of the other concerns that might arise, as the minister said—for example, family relationships—so we accept that it might be impossible to capture all interests that might arise or cause concern. The onus should, rightly, be on the judge or sheriff to declare any relationship interests at the beginning of a case and to recuse appropriately if necessary.

There is concern that a register would have unintended consequences—a phrase that has been used often in the debate—for the judiciary’s freedom and privacy and its freedom from harassment from the media or dissatisfied litigants. Those are concerns, but they are no less so for others in public life, including MPs and MSPs, who may be attacked publicly for non-declaration of interests. Although it is argued that the establishment of a register may have the unintended consequence of eroding public confidence in the judiciary, it might equally be argued that its absence might have the same effect.

I congratulate Peter Cherbi, the petitioner. I welcome the exchange that we had with the Lord President on the issue, although I wish that it had been in front of all the committee. I suspect that the issue will still be a topic for review and will be, as Stewart Stevenson said, recalibrated. Perhaps the snub to the Scottish people will be recovered.

I am glad that we have had the opportunity to discuss and debate the matter meaningfully.



Economy, Energy and Tourism Committee 08 October 2014 : Wednesday, October 08, 2014
Chic Brodie (South Scotland) (SNP)

Good morning, minister. Can you clarify your comments about the selling on of debt? I presume that you are talking about invoice discounting, but can you explain the provisions that are set out in the bill?



Economy, Energy and Tourism Committee 08 October 2014 : Wednesday, October 08, 2014
Chic Brodie

On recovery of public sector exit payments, I have to say that I do not know what covenants exist in the Scottish public sector under which such a measure could be implemented. Is this a new provision? I thought that under our management of the legislation there are already covenants explicitly stating that people cannot re-enter the same service that they had previously exited at roughly the same salary.



Economy, Energy and Tourism Committee 08 October 2014 : Wednesday, October 08, 2014
Chic Brodie

Thank you.



Economy, Energy and Tourism Committee 08 October 2014 : Wednesday, October 08, 2014
Chic Brodie

I will follow that up. A question was raised about the implications of compulsory money advice for the free money advice sector and it was agreed that the Government would conduct research into that. What has been the outcome of that research?

Given the flexibility that is needed and the complications of collating information, how do you intend to control—that word is in inverted commas—the free money advice sector? What research has been done and what has been the outcome?



Economy, Energy and Tourism Committee 08 October 2014 : Wednesday, October 08, 2014
Chic Brodie

I am talking about the impact of compulsory money advice on the free money advice sector.



Economy, Energy and Tourism Committee 08 October 2014 : Wednesday, October 08, 2014
Chic Brodie

You are saying that the research will be conducted. I can only assume that it has not been started and that, when the guidelines are issued in December, we might be missing that important factor.



Economy, Energy and Tourism Committee 08 October 2014 : Wednesday, October 08, 2014
Chic Brodie

First, I apologise for my coughing interludes.

This is perhaps a question not for you, minister, but for one of your officials. We were advised in our briefing—in fact, this relates to an earlier conversation about the proposed legislation—that the electronic application would reduce the administrative burden, because the user would visit only pages that were appropriate to the individual customer, based on whatever information was provided.

The implication of our briefing is that there have not been sufficient time and resources for training before implementation. Is that the case? If so, how do we intend to cover the whole need for training as a catch-up?



Economy, Energy and Tourism Committee 08 October 2014 : Wednesday, October 08, 2014
Chic Brodie

Thank you.



Economy, Energy and Tourism Committee 08 October 2014 : Wednesday, October 08, 2014
Chic Brodie

He must mean Scotch eggs.

Vote DetailMSP VoteResult

 
NoDefeated

 
NoDefeated

 
YesCarried

S4M-11304.3 Michael Russell: Addressing the Attainment Gap in Scottish Schools—As an amendment to mo
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YesCarried

S4M-11304 Liz Smith: Addressing the Attainment Gap in Scottish Schools—That the Parliament believes
>> Show more
YesCarried

S4M-11123 Joe FitzPatrick on behalf of the Parliamentary Bureau: Business Motion—That the Parliament
>> Show more
YesCarried

S4M-11114.2 Kenny MacAskill: Policing—As an amendment to motion S4M-11114 in the name of Graeme Pear
>> Show more
YesCarried

S4M-11114 Graeme Pearson: Policing—That the Parliament acknowledges that policing in Scotland contin
>> Show more
YesCarried

S4M-11116.1.1 Patrick Harvie: Scotland’s Future—As an amendment to amendment S4M-11116.1 in the name
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YesCarried

S4M-11116.1 Nicola Sturgeon: Scotland’s Future—As an amendment to motion S4M-11116 in the name of Jo
>> Show more
YesCarried

Search for other Motions lodged by Chic Brodie
EventIdTypeSub TypeMSP NameParty NameConstituencyRegionTitleItemTextFormattedAnswer DateAnswerStatusIdExpectedAnswerDateAnsweredByMspApprovedDateSubmissionDateMeetingDateProductionStatusIdRecordStatusIdStatus DateOnBehalfOfConsideredForMembersBusinessCrossPartySupportRegisteredInterestSupportCountSupportDateIsEventLinkCurrentMinister
Motion S4M-11191: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 12/10/2014 Show Full Motion >>
Motion S4M-10721: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 04/08/2014 Show Full Motion >>
Motion S4M-10603: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 13/07/2014 Show Full Motion >>
Motion S4M-10352: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 16/06/2014 Show Full Motion >>
Motion S4M-09044: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 14/02/2014 Show Full Motion >>
Motion S4M-09041: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 14/02/2014 Show Full Motion >>
Motion S4M-09035.1: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 14/02/2014 Show Full Motion >>
Motion S4M-08959: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 05/02/2014 Show Full Motion >>
Motion S4M-08543: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 08/12/2013 Show Full Motion >>
Motion S4M-08536: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 06/12/2013 Show Full Motion >>
Search for other Questions asked by Chic Brodie
EventIdTypeSub TypeMSP NameParty NameConstituencyRegionTitleItemTextFormattedAnswer DateAnswerStatusIdExpectedAnswerDateAnsweredByMspApprovedDateSubmissionDateMeetingDateProductionStatusIdRecordStatusIdStatus DateOnBehalfOfConsideredForMembersBusinessCrossPartySupportRegisteredInterestSupportCountSupportDateIsEventLinkCurrentMinister
Question S4O-03565: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 22/09/2014 Show Full Question >>
Question S4O-03401: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 18/06/2014 Show Full Question >>
Question S4O-03334: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 04/06/2014 Show Full Question >>
Question S4O-03283: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 21/05/2014 Show Full Question >>
Question S4F-02117: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 19/05/2014 Show Full Question >>
Question S4O-03248: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 14/05/2014 Show Full Question >>
Question S4O-03203: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 30/04/2014 Show Full Question >>
Question S4O-03175: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 22/04/2014 Show Full Question >>
Question S4O-03023: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 12/03/2014 Show Full Question >>
Question S4F-01906: Chic Brodie, South Scotland, Scottish National Party, Date Lodged: 23/02/2014 Show Full Question >>

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