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Are judges a have, or have not when it comes to whistleblowing protection?

District Judge Claire Gilham gave the following presentation as part of our Let’s Fix UK Whistleblowing Law webinar, ‘Whistleblowing in the workplace – the haves & have-nots’ on 29 June

“ I am what many people would regard is a bog-standard district judge. District judges are the general practitioner of civil courts. We deal with family disputes, road traffic accidents, and we will see you if you can’t pay your rent.

Now what I cannot say today is anything about law reform. The constitution requires the state to not undermine judges, and the judges can’t undermine the state. So, the only place I can speak of reform in the law, is if it came up in a case before me in a court. But  I will talk about what happened to me when I blew the whistle.

From 2010 in the recession, I saw choices being made that were affecting justice. Courts work with civil wrongs, so the result was public harms. I held meetings, wrote emails, resisted, was made ill, the usual story. Savings to court budgets were coming from stripping away safeguarding systems because  administrators including the judges acting in those roles made risky choices. And some examples of what happened were; issuing care orders over children – made after being defeated by the parents in court; or other children not being made subject to care orders who needed protection. People’s houses being repossessed for non-payments of their mortgages, but they hadn’t even been served with a Claim. Not enough court rooms after court closures: offices were used as courts. Children were snatched in the Court building, there were attacks on and threats to court users and judges in the building; a violent criminal smuggled a ceramic knife in to kill me. No risk management. Orders over children were sent in, described as consent orders when there hadn’t even been a hearing and  parents later reported being bullied into signing the order. Staff were given performance targets of managing judges to enforce changes and encouraged to move cases around to find a judge who would agree to make an order after a judge had said it could not be properly made. So far quite typical types of  trigger events for whistleblowing: the mistake, someone speaks out,  then the organisation performs a coverup, and the ejection of the person who whistleblows (preferably  with blame attached). I took my case to the courts, and in Gilham v. Ministry of Justice, the ministry of justice defended, saying the whistleblowing rights under PIDA didn’t extend to judges because judges had guarantees of tenure and salary and nothing was needed. Protect intervened, arguing that whistleblowing rights should be given to judges, under human rights article 10 and article 14, freedom of expression rights were being breached.

So it came on and on the 16th of October 2019, our heroine( I think I am allowed to say that) Lady Brenda Hale, gave judgement. She read down equivalent protection for judges, as if they were workers, even though technically we, for most purposes, aren’t. But she also found discrimination against us. Against the rights of freedom expression, under the European Convention. She found that the ministry had put forward no legitimate aim to justify the infringement of our rights to speak out. She described how proper handling of whistleblowing could persuade judges that their concerns were being met and that speaking out in public wasn’t needed.

My experience of the consequence of whistleblowing in the judiciary is punishment, years of no time, near suicide, isolated, not answered, nothing investigated, closed doors, silence, blame, deliberate undermining, records destroyed. In a grievance hearing  I was challenged about  what I thought of seeing judges belonging to the Garrick club – to test me out for feminism?. It was then concluded about  me that my work background in the public sector, my cultural expectations of zero tolerance of racism and sexism, made me an unsuitable personality to be a judge. Lady Hale recognised this potential detriment  when she described  that past history. “It is not enough to say that judges are well protected against dismissal and other disciplinary actions if they speak their minds. They’re not so well protected against the sort of detriments which are complained about in this case: bullying, victimization, and failure to take seriously the complaints which she was making”. Actually, I hadn’t been protected from dismissal. After going through internal routes, without any redress I whistleblew (externally now) to the Guardian newspaper. I was given  notice and sent my P-45.

The judicial system denies and doesn’t produce data on bully and racism complaints and will not now on whistleblowing. Judges whose conduct is complained of have a similar experience to those who themselves complain, They receive the same words: difficult, divisive, unsuitable personality from the  statutorily separate but practically very much intertwined Judicial Conduct Investigations Office. Advice about the use of those code words is also given to those referees whose secret reports are used to sift applicants for judicial appointment. I used to be a very senior public sector executive and board member. And I found that transparency in management, not stage management, is the best foundation for reputation for good governance. For me, governance and engagement as well as properly structured policies and systems are essential to deliver a virtuous whistleblowing circle that delivers learning for the organisation, correction of what’s gone wrong, and reassures the workers. And I agree with Lady Hale that judges feel a public duty to speak out and we need a strong system if we are to be persuaded to do it internally.

So I said to the MOJ when I was settling my case that  I was still going to be working on whistleblowing. A policy has now been produced. Now judicial policy development, much as most that goes on with the judiciary, is behind closed doors. Most judges have no involvement in the policy development, which covers them. And of course, we are all aware that PIDA compliant policies can be produced, which act as a ceiling to restrict rather than as  a floor to support whistleblowing. Policies can be drafted so as to limit and punish as well as to open up freedom to speak. The final draft policy for judges shocked  me rigid. It set up an additional conduct standard beyond and behind the Judicial Code of Conduct threatening to sanction  whistleblowing to the media, politicians, and pressure groups. The forbidden group would comprise Protect, and this policy would have prevented Judge Keith Reynor from speaking out recently in the criminal system about very long detentions of unconvicted defendants. Had that policy statement of a few weeks ago been maintained this talk would fall squarely within it as a potential disciplinary offence  and it may not surprise people, but given the importance that I attach to achieving something from what I have gone through, I decided I would speak out anyway. As Lady Hale asked, shouldn’t the ministry explain how denying the judiciary this protection could enhance judicial independence?

In a Kafkaesque turn, it took an external comment to change that policy last week, making that explicit disciplinary consequence of whistle-blowing to the media disappear  after it was commented on in the media after being leaked.

So why does whistle-blowing matter? It matters because these are public harms, and people will not speak out if they can’t change what is happening and incur a risk if they do. The more serious wrongs I found had public effect. Affecting the outcome of people’s cases going through the courts.  This manipulation does not  often come to the knowledge  of the courts users. In a recent law report, this kind of improper pressure, suppressing whistleblowing was addressed head on by a judge who had made it known to the parties in a court case that they  had received a round robin letter from a leadership judge telling judges how they must exercise their powers in  this kind of case. Revealing this letter’s existence controlling judicial actions   as the reason for the case decision – the judge will have done that mutely inviting an appeal. On appeal that practice of sending such letters and that proposed practice  of deciding this type of case in the way the letter recommended were both found to be unlawful. It still goes on . Judges are told on training courses that an order available as a matter of law “ must never in x circumstances  be made”, we receive emails telling us that if we make an order of a certain sort we are going to be “taken out into a corridor, sent for retraining” which means we may  lose our right to hear certain cases, and will never be promoted. Judges who say that the policy on detention on bail breaches human rights  find that they are not allowed to hear those cases anymore, the work is taken away from them and given to another group who are higher paid and will comply.

So, we have a new whistle-blowing policy from a few days ago within the judiciary. It does now – after that external pressure from the media – for the first time mention judicial independence as something to be guarded.  It sets up a panel to send colleagues through the system on a confidential basis- in most cases. But it remains a closed process, without appeal , without data collection or review on what we speak out about ; without the safeguard of an external regulator to take serious matters to.  Remarkably – it applies to us after we retire as well as when we are in the job.  Has the mind-set which characterized whistle-blowing as linked to a disciplinary outcome – which led to my being unlawfully sacked  changed ? So ,would have I fared better now than then? And am I a whistle-blowing have or a have not? The judiciary now, have a policy. Have we preserved judicial independence, which is the objective set up by Lady Hale? All I can say is time will tell.”