07:10, November 12 61 0 theguardian.com

2018-11-12 07:10:10
Judge starts crowdfund appeal to test judiciary employment rights

The first judge to take a whistleblowing appeal to the supreme court has launched a crowdfunding campaign to test the employment rights of the judiciary and other “office holders”.

Claire Gilham, a district judge who worked in Warrington county court, has raised concerns about overwork, death threats and bullying as well as the damaging impact of austerity that has led to more violent, unrepresented claimants in courtrooms.

She is trying to overturn an employment tribunal ruling that judges cannot be classed as “workers”. Without that status, judges – as well as clerics and other so-called “office holders” – are not entitled to the legal protections granted to whistleblowers to make disclosures in the public interest.

Since the 1701 Act of Settlement, judges have been deemed to hold their office “during good behaviour”. In order to guarantee judicial independence, they can only be removed through misbehaviour or inability to perform their duties.

Gilham was formerly the deputy director of the Independent Police Complaints Commission before she became a judge in 2006. The Ministry of Justice argues she is an “office holder” and therefore does not have a contract of employment with the department.

The appeal court found against her last year but the supreme court has granted permission to appeal accepting there is a point of general law that needs examining.

Because her protracted case has proved so expensive, Gilham has already mortgaged her home to pay for legal bills. She has now launched an appeal on the CrowdJustice website to seek support and raise awareness of the issues.

“It’s a test of whether judges really enjoy protection or whether the [whistleblowing] exemption exists primarily to protect the administration,” she said. “Judges don’t have the right to see their own personnel records and they don’t have a robust procedure for bringing complaints about mistakes being made that affect the administration of justice.”

During her dispute with the MoJ, she refused to sign a non-disclosure agreement that would have allowed her to retire but prevented her from speaking out about what she believes are serious problems. There are about 1,700 court and tribunal judges in England and Wales. “I have received support from other judges privately,” she said, “but they are under pressure to keep quiet.”

Gilham’s experience of the strains inside the family court system reflects wider concerns about the pressure imposed by an influx of unrepresented partners and parents after cuts to legal aid.

During her time on the bench she dealt with domestic violence and drugs cases and was warned by police that “someone had a settled intention to kill me”.

The charity Protect, formerly Public Concern at Work, is intervening in the supreme court case which is due to be heard early next year. Its chief executive, Francesca West, said: “The law has not kept pace with the modern workplace. We are worried that it is not protecting those it needs to look after.”

Under the Employment Rights Act 1996, only workers are protected in making whistleblowing disclosures. Judges, volunteers, members of the clergy, foster carers and “office holders” are not, even if they raise concerns about safeguarding children.

West added: “Nothing in a non-disclosure agreement can preclude anyone from [whistleblowing] but it doesn’t feel very encouraging for them when they have already been through such a bruising process.”

Emilie Cole, a solicitor at the law firm Irwin Mitchell who represents Gilham, said: “Judges must have the right to speak out and blow the whistle, safe in the knowledge that they will be protected for doing so. As the gatekeepers of our justice system, their basic human right to speak out about breaches of the law goes hand in hand with their judicial duty and responsibility.”

The MoJ has denied that Gilham suffered through her whistleblowing. When the case first came to court, the MoJ said: “There are robust security and safety measures in place to protect judges and everyone else who attends court.

“Judges are not in a contractual relationship with the MoJ but hold office on appointment by Her Majesty, the lord chancellor or the lord chief justice ... The lord chancellor and lord chief justice make sure policies are in place to protect the welfare of judicial office holders.”

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