The Justice Secretary Keith Brown has announced an intention to create a Register of Interests for members of the judiciary. The Lord President has expressed concerns, but these have been dismissed. His principal concern is that a requirement to register interest might deter potential candidate for appointment as judges. This requirement could also deter potential sheriffs, but the Lord President says, correctly, that there is a limited number of those who would merit appointment to the bench of Scotland’s highest court.

It is not so long ago, that the Lord President asked a judge to try to find out the reasons why senior members of the bar were not applying for such appointments. No doubt the reasons given were cogent and at that time, there was not the additional factor of a ”register.”

No doubt the thinking is that such a register is needed in order to placate the two gods “openness and transparency.” Unlike others who have to disclose an “interest,” holders of a judicial office take the judicial oath, which is to “do right to all manner of people… without fear or favour, affection or ill-will.”

Accordingly, any judge/sheriff will probably err on the side of caution and mention anything which, in the eyes of a party may suggest partiality, e.g. the 100 shares in the Bank of Scotland, or membership of the RSPB. Furthermore, there is a saying, “If it ain’t broke, don’t fix it”. In order to find out if, despite the judicial oath, the system may be thought to be “broke”, a look at reported Scottish and English cases will reveal that this is not the case.

Furthermore, a Register of Interests will not cover a situation that can arise in any court, namely that the judge/sheriff knows one of the parties, or has some knowledge of a party, or, in my case, a juror. What to do in such a case is governed and can only be governed by the judicial oath.

There is another problem and that is that there may be cases before the courts where it is argued that the judge/sheriff ought not to have dealt with a case because the register discloses a very small holding of shares in a large company which is the pursuer/defender. Party litigants, some of whom have a less than balanced view but who often have nothing to lose, will take up a court’s time with the most implausible of arguments and appeal the decision if it is not what they want.

One has to ask what problems cannot be addressed by considering the terms of the judicial oath. I comment its brief terms to Mr Brown. The proposed register will, however, be of great interest to the nosey who, of course, support the notions of “openness and transparency.”

Douglas J. Cusine