"Utterly disgraced": Judge condemns Judicial Appointments Commission

Who judges the judges?

It is supposed to be a self-evident truth that justice is blind and those dispensing it are fair, unimpeachable and incorruptible, writes Barnie Choudhury. It is supposed to be a self-evident truth that judges are independent, and politicians should not interfere in the course of justice. It is supposed to a self-evident truth that justice is open and transparent, and as public servants we, the public, have a right to know who is appointed to such an office and how they make their decisions.

But after entering my 45^th year in journalism, I am afraid these axioms are not true. Instead, as I have written extensively in Eastern Eye, judges regularly face misogyny, bullying and racism. Those seeking a judgeship are often blackballed through something called “secret soundings” where one person’s word prevents them from qualifying. And candidates languish in a Kafkaesque hell of neither knowing their accuser nor why they failed.

That is why the fourth pillar of democracy, an independent press, is so important. It is up to us to hold up that mirror to society to reflect back warts and all, without fear of favour. We must hold public power to account, from the highest political office of the prime minister to the lowest parish council and those in between who can influence how we live, how we behave, how we function in daily life.

The Freedom of Information Act 2000 came fully into force in January 2005. It forced public bodies such as the police, council and even parliament to shed light on things they wished to remain hidden. It forced parliament to reveal what MPs claimed in expenses and sent several to jail for fiddling expenses. That shows the power of the FOIA. But today, and I speak from bitter experience, those public organisations, which we pay for in our taxes, use every trick in the book to hide information to which we are legally entitled. They are meant to answer in 20-working days. I had a recent case where a council responded after more 120-days. They obfuscate by pretending not to understand your question. They claim not to keep the information you’ve requested. And get this – these decision makers and gatekeepers don’t have to be legally qualified.

Barnie Choudhury

Let’s break this case down and explain why it is important. Abbas Mithani, a clever jurist asked for information from the JAC. The commission refused to give it and used section 36 of the act. The ICO’s webpage reveals Section 36 to be an exemption which it ostentatiously describes as “prejudice to the effective conduct of public affairs”. In other words, public institutions can use this exemption if they believe that by revealing something it would stop them doing their job properly.

So, suppose you were a housing officer, and you wrote an email to a colleague in which you said, “I really think south Asians are spongers and are deliberately breeding so they can get council homes meant for hard working Brits”. If I got wind of that, and I wanted proof, I would either have to rely on a whistleblower or I could put in a freedom of information request. The council could argue that they needed frank conversations to do their job. But to do that it would need someone qualified – usually the boss, and in this case signed off by ministerial approval – to agree with its decision and give it permission not to reveal that information.

What we found out, through email exchanges revealed under the FOIA, was that the JAC had been issuing section 36 exemption decisions without having a person qualified to do that. We do not know how long or how many times the JAC did this. So, the second question is, what’s our next step? We ask for an internal review. Another 20-days wasted. And when that fails, we turn to the Information Commissioner’s Office.

And the ICO, which is meant to watch these institutions like hawks on our behalf, is unwittingly helping organisations get away with breaking the law. The ICO is so weak, and it has so few resources, it simply cannot cope with the daily breaches. This case, which Eastern Eye exposed, is one example.

For one reason or another the ICO failed to carry out a basic check on whether the JAC had a so-called “qualified person” to issue a section 36 refusal. It assumed that the JAC had one in place. The problem is that the JAC didn’t. And even when the ICO found out, its position was, “Well, it was a technical breach, so we’ll let it go.” That’s not how the law works. Well, that’s not how the law should work.

This case is important because if someone is making decisions not to reveal information, and the watchdog has fallen asleep or had its belly tickled, how do we know that those being appointed to dispense justice really are the best of the best? How do we know they are independent? How do we know they are not bullies, misogynists and racists? How do we know that it’s not an old boys’ club for white folk with connections? In short, how do we know that our courts really are the champions of justice?

So, our role, as journalists, must be to judge the judges on your behalf, because it’s clear no-one else is. And we need you to be hypervigilant, to fight against injustice, to challenge authority lawfully, just as Mithani is doing, because ultimately, they work for us. The clue is in the name – civil servants. They are meant to serve us, not themselves.