- Tuesday, October 03, 2023
Ex-judge Gilham discusses whistleblowing and new ‘restrictive’ guide
By: CLAIRE GILHAM
IN 2019, in the Supreme Court, I won whistle-blowing rights for judges. Rights which are guaranteed under human rights law, but were denied to me by the Ministry of Justice (MoJ).
I had whistleblown about courts being made unsafe working environments, which was traceable to budget cuts in the recession. I had been made ill and was forcibly retired in that process, which was again unlawful and which the MoJ was obliged to reverse so I could go back to work until retiring last year.
I have always maintained that anybody has a right to whistle-blow where they discover a public harm. I also believe that it is my duty as a judge not to talk about the cases before me and that protecting the integrity of the judicial system doesn’t extend to covering up its errors or concealing its faults.
I believe the public also expects judges to be fearless in identifying wrong, and that the public supports real judicial independence.
The financial costs for me were on a ruinous scale. Since then, Judge Kaly Kaul has also sacrificed her financial security in her own legal case to force the judiciary to acknowledge it has a duty of care for the welfare of judges.
Between us we have gained legal protection for health and safety for judges which other workers could take for granted. Our cases have led to improvements. There are now safety standards for courtrooms, a whistle-blowing policy, albeit weak. Disability is better protected and diversity is beginning to be seen as an issue.
Thanks to campaigning work by Eastern Eye, and a hearing by the justice select committee, the lord chief justice has moved from a flat denial that bullying is even a thing, to acknowledging that 10 per cent of judges experience bullying at work.
Unfortunately, photo shoots and events staged by the centre are preferred responses to engaging and changing. Privileged education, personal characteristics, professional connections and, yes, even family relationships remain the best predictor of appointment and promotion.
Other judges, finding internal investigations biased, are litigating their complaints, and more are prepared to speak out. Cases which in the past would have been settled in private with hush money, are being reported in the legal press. What is emerging is a picture of failure to adhere to regulations and of collusive secrecy between agencies set up by parliament to act independently.
Want to be a lord chief justice [LCJ]? Then you will have to have served in the chief executive’s office at the “independent” Judicial Appointment Commission [JAC]. When you are LCJ, then you will appoint the senior judiciary – the single most complained about group in terms of bullying and singularly non-diverse. Deputy director of the Judicial Office whose role is to support the LCJ? Then you will also be head of the “independent” Judicial Conduct Investigations Office which has to investigate complaints about the judges.
The two factors which make it very difficult for judges to take their own cases through the courts (once one sets fears of a biased tribunal to one side) are that:
1. secrecy is baked into the judicial system, for example, by statute allowing unsuccessful candidates to be led to believe that they have failed to pass tests rather than that someone doesn’t approve of them.
2. legal costs are no object to the ministry who tactically litigate to exhaust the individual.
UN guarantees of judicial independence to which we are bound by treaty should be safeguarded by judges in each country making rules for themselves.
Not so in England and Wales. Here, a nominated handful of judges and civil servants have just issued a Guide to Judicial Conduct which is singularly unbalanced in attempting to impose silence on judges with no consideration at all of any duty to speak out.
This guide has been produced without asking if this meets judicial consensus and without public consultation. The Judicial Support Network understands that this erosion of judicial independence is a reaction to bad press which may explain why it seeks to be so restrictive. Judges respect parties’ privacy once cases are over, and self-censor – first, to protect the integrity of the individual decision and second, to maintain the integrity of the system. The latter means avoiding unnecessary open criticism of the executive and its policies.
Judges, though, are not civil servants, and the public expects that they will not be inhibited by fear for their own careers and reputations from speaking plainly about the system’s faults. It is the faults that damage the system, not the act of acknowledging them. Silence can be collusive.
This guide says judges must speak to the civil servants at the media office; speak and, by implication, gain the consent of their leadership judges before speaking out or they may be brought up on a disciplinary charge. If a case in front of them exposes a serious issue requiring public attention, then they must approach the one person the LCJ has chosen to be the official mouthpiece of the judiciary’s view on the subject who may then say something or nothing about it. Judges are being told they cannot contribute freely to academic or professional debate.
This is not how we made the common law, and it will hamper the adaptability of law.
Since the current judicial system was set up in 2005 there has been a marked loss of responsiveness and legal development to deal with the ordinary person’s problems because of hierarchy. We have stratification of priorities where what is at the top is important and what is at the bottom gets no attention. Family courts have real problems and consumer fraud is just not being addressed through the courts. Reform – the programme of digitisation – supports administrators, but impedes the work of front-line judges but is pushed though because of its uninformed top-down design.
Claire Gilham is a former district judge who won a seven-year battle against the Ministry of Justice to blow the whistle on bullying and racism in the judiciary. She retired in October 2022 and co-founded the Judicial Support Network in 2021 with her colleague, Judge Kaly Kaul KC
