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Thursday, 28 December 2017


By 22 December 2017

A whistleblowing district judge who went public with her concerns about the justice system will take her fight to be classed as a worker to the Supreme Court after failing on appeal.
The Court of Appeal ruled yesterday that judges should not be classed as workers and are therefore not afforded the same legal protections as whistleblowers. 
Claire Gilham vowed to fight on in October after failing at both employment tribunal and employment appeal tribunal. The tribunals said there were adequate safeguards in place to protect freedom of speech for district judges, but that Gilham was an office-holder and did not work under contract with the Ministry of Justice.
In yesterday’s ruling judges Gloster, Underhill and Singh dismissed her appeal.
The judgment said: ‘It is also clear that parliament has used a number of different formulae in order to define the scope of protection of different pieces of employment legislation. It may well be that the line which it has drawn is open to criticism from those who are dissatisfied with the lack of apparent protection for them … Nevertheless, that is the policy choice which the democratically elected Parliament of the UK has made.’
Judge claire gilham
Judge Claire Gilham
Source: Linda Nylind
Gilham, previously head of the personal services legal team at Cheshire County Council, was appointed a full-time district judge in February 2006, sitting in Crewe. She transferred to Warrington in 2009.
Her case stems from the closure of Runcorn County Court in 2011 and the transfer of work to Warrington. Gilham said she became gravely concerned by the lack of courtroom accommodation and potential workloads.
DJ Gilham claimed she was ‘treated detrimentally’ after she raised concerns about ‘systemic failings’ in the court administration. She wanted to make a whistleblowing claim against the MoJ under the Employment Rights Act 1996.
She told the Gazette today: ’Judges remain in an almost unique position , outside the scope of the legislative protections for whistle-blowing. The rationale being that judges have their independence protected, but there is a paradox here. There is very limited scope for concerns to be resolved internally, and the grievance  processes are secretive. A judge may be forced to retire on ill-health grounds, and that process too is secret. These processes do not withstand the pressures of matters flowing from recent service reductions in the courts well.
’Judges are expected by the public to  exercise independence but my concern remains that without clear boundaries and  transparency as to how and to what extent judges are managed in their daily functions, their ability to exercise that independence may be compromised. The concerns I have raised include workload and safety after reduction of secure courtroom space, the role of staff in managing judicial professional issues such as the exercise of judicial discretions, and  elements of judicial culture and behaviour which coming from a public sector background I feel bound to question.’
Public Concern at Work (PCaW), a charity supporting whistleblowers, intervened in the Court of Appeal hearing in support of Gilham.
Gilham was represented by Bindmans while PCaW was represented by human rights firm Leigh Day.
In a statement today, Emilie Cole, partner at Bindmans, said: ’On behalf of our client, we maintain that the issue of whether a judge can gain legal protection against being subjected to unfair treatment as a result of blowing the whistle to be of great public importance.  The Court of Appeal recognised that their decision that a judge is not a worker within the meaning of section 230 (3) creates a distinction between those employment rights accorded to workers which derive purely from domestic law and those which derive from EU law, as established in O’Brien and acknowledged “that may not appear to be a coherent or, it might be thought, particularly satisfactory, state of affairs”  (para 74).  We disagree that this can only be remedied by Parliament and consider that it is now appropriate for the Supreme Court to consider this issue.’
PCaW chief executive, Francesca West said: ‘Whilst the [CoA] decision is disappointing, PCaW’s intervention in this case assisted the Court of Appeal in considering new arguments as to why certain groups of people are not protected against detriment in whistleblowing cases. PCaW will continue to take active steps in promoting wide whistleblowing protections without discrimination in line with human rights legislation.’

The MoJ declined to comment.

  • No John: statute law can change the common law and it has often done so. Every lawyer knows that; every law student knows that; every well informed youngster at school knows that.

    Just what do you mean, then, by a "common law court"? One that ignores the laws made by the Parliament we elect?
  • ROBERT RITCHIE. Unfortunately i do not possess a copy of Halsburys but I have read the comments in the book.However another law book, K.C. Davis, Admin law.Chapter1, (CTP Wests 1965 edition) 
    "judges who become involved in the enforcement of mere statutes, (civil or criminal in nature or otherwise), act as mere clerks of the involved agency......" 
    Commenting on the anon remarks. I suspect that the remarks are made by people practising law. They know that the colour of law is a term that describes the deception necessary to be used to get the living man or woman to accept responsibility for the legal fiction. Knowing this may help readers to understand anonymous comments. They dare not admit that all courts are kangaroo courts. I say all courts because our common law courts are not available to us. I've tried but the so called judges will not go on their oath of office which is necessary to conduct a common law court. The supreme court is the only court that I know of that accepts that the common law is supreme. The DJ should ignore her training and research her true status . She is merely a clerk working for the state.
  • Whistleblowing DJ's? Takes me back to the days of Acid House.
  • Robert, there was nothing to address. It was incoherent, rambling and unfocused.
  • Mr Timbrell: please give your Halsbury references. Also, there may be legitimate reasons for critics to remain anonymous. 

    Critics of Mr Timbrell: you have not evidenced any legitimate reasons to remain anonymous. On the contrary, by playing the man instead of the ball you simply add credibility to Mr Timbrell's accusation of moral cowardice. In effect you yourselves become nothing more substantial than internet trolls. 

    Remember: criticism always reveals more about the critic than about the criticised. (Yes, mutatis mutandis that also applies to myself)
  • The status of a judge's employment must rest upon the method of remuneration, surely. I am sure judges work for nothing! Who pays their generous pensions? I surmise that judges are public servants because they offer a 'public service', therefore it is reasonable to suppose it is the tax payer who foots the bill, and are they paid any differently than our other public servants such as the police who are engaged in similar matters. Unless someone tells a different tale the I surmise that the Court of Appeal is wrong. Just as our friend John Timbrell, I am not anonymous.
  • anyone who hides behind anonymous and then criticises cannot be considered genuine. Why not criticise what I describe in Halsbury's. I stand by what I wrote because your anonymous contribution shows that you do not have the courage of your conviction.
  • So-called john timbrell @ 14:15 : multiple thumbs down. 

    High time the LSG had a coherence filter. 
  • Anybody who uses 'so-called' to that extent clearly has nothing useful to contribute.
  • john timbrell @ 14.15 

  • It is not generally known, even by so called judges, that when they are administering so called justice, they are not judges merely enforcement agents for the corporation known as parliament. 
    Before you rush to criticise, check out Halsbury's laws of England on the status of judges in administrative courts, 
    Of course the DJ is an employee. The judges so far are trying to protect their own status. I doubt if the supreme court will agree with the judges because they take notice of the common law. 
    This is not just an academic point. So called judges cannot be sued because they are protected by statute. Real judges who swear on their oath of office can be sued.The so called judges will not go on their oath of office so they can state that they are not qualified to hear an application for a writ of habeas corpus. Check out the supreme court rule 54 regarding habeas corpus and then check the unlawful civil procedure rule. This what give the establishment power to keep secret their unlawful ways.
  • I have been concerned about the subtle damage to the independence of the judiciary by the changes, or as Blair and co called it 'modernisation', of our judicial system. Leaving aside the change from Lord Chancellor to Justice Minister, seemingly innocuous but actually quite profound, was the much more affective imposition of management roles onto judges. This made them complicit in decisions which, as the DJ is bravely arguing, compromise justice. Her case is likely to fail on legal grounds when this is a matter which should be brought into the public domain by our professional bodies so that Parliament, currently so keen to demand respect for it's role, can act.