A whistleblower consultant’s victory that exposes scandals at the Care Quality Commission and a hospital trust

Whistleblower Dr Shyam Kumar; Pic Credit: BBC

The victory by whistleblower Dr Shyam Kumar, an orthopaedic surgeon, against his unfair dismissal as an part time inspector for the Care Quality Commission is just the tip of an iceberg scandal at both the CQC and the University Hospitals of Morecambe Bay NHS Foundation Trust.

His victory – I am glad to say reported by the BBC, the Guardian and the medical press- was only possible by his persistence in the face of obstruction by the body that is supposed to hold up standards of medical care to protect patients and the collusion of a trust to protect its own reputation.

He told the BBC: “”The whole energy of a few individuals in the CQC was spent on gunning me down, rather than focusing on improvement to patient safety and exerting the regulatory duties,”

“I was perceived as a troublemaker within the CQC, or as a thorn in their side. That’s what I believe. And they just ignored it. And finally, people got involved.” 

The ruling at Manchester Employment Tribunal by Employment judge Mark Butler said he had received detriment for speaking out and awarded him £23,000 for injury to this feelings. Dr Kumar had not sought any other compensation.

The judge said:” There is evidence throughout this case….that the decision to disengage the claimant in this case (and the placing him on hold) has had a serious impact on the claimant’s reputation causing him injury to feelings. There were suggestions of misconduct by the claimant … where no evidence of this existed, and vague assertions of a breach of undefined values of the respondent … used in an attempt to justify the decisions made in this case, after the event” Instead the judge described Mr Kumar as a man with an untarnished reputation and expertise.

Dr X left a hip replacement patient never able to use her limbs

The detail of the concerns Dr Kumar found are deeply disturbing for patients. One involved Dr X whose two hip replacements on an elderly lady which overlooked the dislocation of her pelvis and she had to come back to accident and emergency unable to walk and his colleagues thought she would never be able to use her limbs again. When he raised this with the CQC and said a back review of Dr X’s cases should take place he was told the trust did not want to do this for reputational reasons.

When the Royal College of Surgeons did their own review much later into Dr X they found 26 out of 46 operations were matters of concern.

The judgement said:

a. some surgeries undertaken by Dr X were not completed to an acceptable
standard
b. some of the surgery and quality of care provided by Dr X was unacceptable.
c. some clinical decision making to undertake surgery by Dr X was
inappropriate.
d. in some cases there was either no or a lack of evidence of a “Duty of
Candour”

Dr Kumar was thanked by the associate medical director of the trust , Mr Damian Riley in 2021 for his work.

But at the time of the CQC inspection Dr Kumar faced a barrage of criticism from CQC officials, was effectively suspended from his job, and subject to racist attacks including being accused of being ” a traitor to his community ” for raising issues about Dr X’s competence by another trust doctor, Dr Sinha.

At a CQC focus meeting Dr Kumar was even falsely accused of deliberately creating NHS waiting lists so people would have to go privately – making extra money for doctors.

The CQC’s response was to side more with the trust than the whistleblower. This led Dr Kumar to write to the Chief Inspector of Hospitals, Professor Sir Mike Richards. complaining that “patient safety is being
significantly compromised by the behaviour of some CQC staff.” He also complained he had been bullied and obstructed by CQC officials, his professional independence had been undermined and his whistleblowing concerns ignored.

The court upheld his protective disclosures. The judge also took a strong line in allowing the press access to all the documents in the case and also restricted an attempt by the CQC lawyers to restrict reporting of the Royal College of Surgeons report on the grounds that families had to be told first. The judge granted a very short restricted reporting period and was never challenged again.

The CQC in a statement said: “We accept the tribunal findings and have learnt from this case. We have already improved many of our processes and will continue to review these based on the findings to ensure we make any further necessary changes.”

Much wider issues than just this case

But there seems to me a much wider issue here about the behaviour of this particular trust and the role of regulation. This is not the first time this trust has been found wanting. There is the case of Peter Duffy, a consultant surgeon, working for the Morecambe Bay Foundation Trust. Faced with failures at the trust in the emergencies department he expressed concern for two patients who subsequently died from kidney sepsis.

One would have expected the Trust to have remedied the situation. Instead they turned on him rather than admit any failings. As he told Matthew Syed on Dispatches: ” I was on the receiving end of allegations of bullying, abuse and racism. And so what I hoped would be an attempt to raise standards became an investigation of myself”.

He was eventually proved right after an investigation disclosed multiple problems but not until after a five year toxic battle and now practices in the Isle of Man.

Inquiry chair Dr Bill Kirkup Pic credit: gov.uk

There is also the 2015 inquiry report by Dr Bill Kirkup into Furness Hospital, run by the trust over the deaths of babies and appalling maternity care.

As he says in his introduction: “The result was avoidable harm to mothers and babies, including tragic and unnecessary deaths. What followed was a pattern of failure to recognise the nature and severity of the problem, with, in some cases, denial that any problem existed, and a series of missed opportunities to intervene that involved almost every level of the NHS.”

There is a disturbing pattern that repeats itself. Whistleblowers, whether doctors or families, raise serious life and death issues, are ignored, denied justice, bullied and attacked, using the power of the state to buy expensive lawyers to try and crush them -only for them to be proved right in the end. With the Dr Chris Day case due to report this month following an extraordinary employment tribunal hearing where evidence was destroyed, it remains to see whether this pattern can start to be broken .

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Industrial espionage, destroyed documents, search warrants and contempt of court – all around the home delivery of your groceries

Ocado grocery delivery van. Pic credit: Which?magazine

Extraordinary story of how two high flying former Ocado executives planned to use the company’s trade secrets to get business from rivals Waitrose

You will know that home delivery of your groceries is competitive with supermarkets vying with each other for your business. All rely on some form of new technology to get this done.

This week a final court judgement saw a City solicitor being convicted of destroying documents required by a court order in a culmination of an extraordinary saga that has raged for the last three years over home grocery deliveries.

The case had been brought by Ocado Plc, the parent company of the on line grocery retailer, which used to deliver groceries for Waitrose and now delivers groceries for Marks and Spencer as well as its own goods.

One of the co founders of Ocado, Jonathan Faiman and later another executive, Jonathan Hillary, left Ocado to set up a rival grocery technology business called  Project Today Holdings Ltd.

Marks and Spencer logo; Pic Credit: Wikipedia Commons

But as the courts were told their business plan was far from ethical. Mr Faiman tried to get a deal with M&S but was beaten by his former employer, Ocado. At a meeting with M&S to discuss the plans with the company’s chief executive, Steve Rowe, Mr Faiman insisted his colleague -Mr Hillary, still working for Ocado, should have a secret identity only known as” Jon”. Unfortunately for him when the trial began Steve Rowe recognised that Jon was Mr Hillary. A memo also revealed Mr Faiman had contacted senior Ocado staff using ” burner phones”.

Mr Faiman then opened talks with Waitrose and wanted to win their business using Ocado’s trade secrets. To get their business he got Mr Hillary to copy them. Over dinner at Mr Hillary’s home Mr Hillary provided Mr Faiman and Mr McKeeve with documents. These included a copy of a set of contract terms recently agreed between Ocado and M&S entitled, “Agreement for the Provision of the Apricot Smart Platform” (the “OSP Contract”), and operational schedules for Ocado’s contract for the provision of the Ocado Smart Platform to Groupe Casino (a French Supermarket group) (the “Operational Schedules”).

Discussions with Waitrose proceeded constructively, and on 15 May 2019, Mr Hillary resigned from his position at Ocado for a new role with Today. On 16 May 2019, Waitrose announced a new commercial relationship with Today. On 23 May, Mr Hillary was placed on gardening leave by Ocado. He remained an Ocado employee.

Ocado came to be concerned about Mr Hillary’s activities in communicating with Mr Faiman. They suspected he had handed over confidential information and/or had been working for Today while still employed by Ocado, in breach of his contract of employment.

According to Mischon de Reya, Ocado’s solicitors Faiman and Hillary later admitted in a settlement statement “While still employed by Ocado, Mr Hillary, at Mr Faiman’s request, provided Mr Faiman with a significant number of confidential documents belonging to Ocado, including documents relating to the running of Ocado’s automated warehouses and the key agreement under which Ocado would provide its online grocery technology to the joint venture with M&S.”

Mr Faiman then admitted he was taking the hard copy confidential documents with Ocado’s trade secrets to Waitrose with the aim of cementing a business deal just as Ocado, went for a search warrant to find out whether its documents had been stolen. Waitrose when it realised what was happening pulled out of any deal.

But the situation was going to get much worse. The courts granted a search warrant covering the Connaught Hotel, a luxury five star hotel in Mayfair, London where Mr Faiman was staying and Mr Hillary’s home in Ascot and the firm’s offices in The Foundry in Fulham. The search warrant covered documents, electronic devices and mobile phones and Ocado’s secret documents were recovered from Mr Faiman’s hotel rooms.

Connaught Hotel, Mayfair where lawyers found the Ocado documents

Mr Faiman decided to involve his friend Raymond McKeeve, a City solicitor , who counted his company as a client. Mr McKeeve had been involved in the Waitrose negotiations. When told of the search warrants he panicked rang an IT employee and told him to ” burn all” – ie start destroying them. This happened just after the search warrants had been served.

The reason, as the courts were to discover, was that the company had a sophisticated private message and call system -known as the 3CX app- as a way of disguising its dealings between Mr Faiman and Mr Hillary so Ocado would not know. The system could be destroyed permanently at short notice. Mr McKeeve was particularly worried as his wife’s name Belinda de Lucy who then was elected as a Brexit Party European MP for South East England, without her knowledge and he thought she would be drawn into a dispute with Ocado. Her name was first used as pseudonym for Mr Hillary to communicate with Mr Faiman.

Ocado bring claim for criminal contempt against City solicitor

Ocado plc brought a claim for criminal contempt accusing Mr McKeeve of intentionally interfering with the administration of justice by causing the deletion of documents which were essential to Ocado’s case and thwarting the purpose of the search warrant. They also tried to extend this to other documents and email systems.

Mr Faiman and Mr Hillary had to agree to permanently destroy all the stolen documents and a pay a very large undisclosed sum to Ocado in a settlement. His company is now in administration – the last known accounts at Companies House showing it owed over £8m to creditors- including nearly £2m to HM Revenue and Customs. Mr Faiman declares his official residence is in the tax haven of Monaco.

But for Mr McKeeve it was not all over as he faced criminal contempt charges.

Mr Justice Adam Johnson Pic Credit: Judicial Appointments Commission

At the hearing Mr McKeeve, a City solicitor with a number of private equity clients, clearly did not realise how serious this had been. The judge, Mr Justice Adam Johnson, described him in his judgement as “an intelligent and driven individual. At the relevant time, he had a successful practice as a solicitor in the private equity field, which he was proud of.”

The judge said “at times [he] exhibited a degree of arrogance (for example, in the evidence he gave about his ability to “annihilate” complex legal documents at high speed). He was also at times combative in the evidence he gave.”

The judge said he had shown ” shame and embarrassment” for what he had done saying at one point: “The idea that I would have committed a contempt of anything just horrifies me. The word is so perfectly chosen because it is a most horrendous word. I would only show contempt where enemies of the state or people are trying to harm my family. The idea of showing contempt for the rule of law and the court is just beyond the pale.”

McKeeve’s act of colossal stupidity – judge

But the judge said despite everything he “could not quite bring himself to accept that what he had done wrong might amount to a contempt of Court.” What he did the judge concluded his conduct had been a ‘spontaneous act of colossal stupidity’.

Judge Johnson found him guilty of contempt of court over the destruction of the phone system but not on other additional cases brought by Ocado,

A spokesperson for Ocado said: ‘We felt compelled to bring this solicitor’s conduct to the attention of the court as it was the right thing to do. Ocado has been vindicated in its decision to do so. We welcome the judgment but take no joy in it. It is regrettable that a solicitor failed in his duty to uphold the administration of justice and was found to be in criminal contempt of court.’

The case was adjourned until October 4 to decide what sanctions Mr McKeeve will face for his contempt.

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David Cocke – the trust official who destroyed ” potentially relevant” emails – instructs top lawyer and pulls out of cross examination in Chris Day tribunal

Dr Chris Day

Judge Anne Martin says she doesn’t accept Communications Director quit tribunal hearing for medical reasons as the trust provided no medical evidence

Revealed: note of the Board Meeting that approved settlement of Dr Day’s case hidden for 4 years and its existence denied to a judge

The Chris Day tribunal took yet another unexpected dramatic turn today when David Cocke, the director of communications, for the Lewisham and Greenwich NHS Trust pulled out of today’s hearing – he was due to be cross examined this morning.

Instead of defending his two witness statements in support of the Trust, Mr Cocke has instructed Kingsley Napley, ” well-established as one of the world’s leading criminal law firms, largely because of its role in several high-profile cases”.

The implication is that he intends to defend himself from allegations that he deliberately destroyed evidence that were placed in an unsigned statement on his behalf and relied on by the NHS and its law firm Capsticks – maybe Mr Cocke will now be taking on his employer, the Lewisham and Greenwich NHS Trust.

IMr Cocke was due to be cross examined by Andrew Allen, QC for three hours over the preparation of what another witness Sir Norman Lamb, the former health minister described as ” inaccurate, damaging and defamatory” public statements to the press, MPs and other stakeholders attacking Dr Chris Day in 2018. The former minister said the trust owed Dr Day an apology for what they had done.

Dr Day has been fighting the trust for nearly nine years after he made protected disclosures about patient safety and inadequate staffing at the intensive care unit at Queen Elizabeth Hospital in Woolwich. Two people died there including one who had a chest drain inserted by mistake into his liver.

Events at the hearing already took a dramatic turn earlier this week when Mr Cocke volunteered a cache of emails that should have been disclosed to Dr Day four years ago. This was followed by the disclosure of a 2018 board report which discussed how to handle Dr Day’s case among emails held by Ben Travis, the trust’s chief executive, which the trust denied to a judge had ever existed in 2018.

David Cocke then went into the trust’s headquarters at 5.30 am and destroyed 100 emails and an archive which contained ” potentially relevant ” information which should have been disclosed to the tribunal. He claimed the emails had been permanently destroyed.

Last week he cancelled his planned appearance before the tribunal claiming, without providing a medical certificate, that he was ill.

He then abruptly reversed his decision and informed the court at the time the tribunal were deliberating on whether to strike out the trust’s entire response because of Cocke’s ” egregious behaviour ” which could amount to perverting the course of justice.

The tribunal decided to continue and Mr Cocke said he would appear today.

Then last night the tribunal was told he was going to pull out for the second time having instructed Kingsley Napley to fight his corner.

Before that he sent a doctor’s note saying though he was unfit to go to work he was fit enough to be cross examined at the tribunal.

The tribunal was presented with a confusing picture about his health and mental state. Originally the trust had said on July 5 he could stay off work for two weeks because he was ill but he appears to have kept changing his mind about appearing before the tribunal.

Andrew Allen QC

Mr Allen alluded that he was seeking further medical help and may have an appointment with a psychiatrist.

Judge Anne Martin’s statement

In a statement after proceedings had been stopped again Judge Anne Martin said I just wanted to make it clear, that without further medical evidence, the Tribunal can not accept the reason for him [Mr Cocke] not being called to give evidence is medical. It is a decision made by the Respondent.” Or in other words a deliberate step from the Trust to avoid Mr Cocke being cross examined. There is a full statement on Chris Day’s whistleblowing site here and in his crowdjustice newsletter.

IAs a result of Mr Cocke ‘s behaviour Mr Allen concluded that he could not trust whether a revised witness statement from Mr Cocke to the tribunal could be considered to be accurate. His first statement had already been decided not to be an accurate account of the events.

Dr Day, who now is suffering from Covid, did swear two further statements following his reading of Mr Cocke’s statement but Dan Tatton Brown QC told the tribunal he did not plan to cross examine him about them.

Dr Day’s statement, which is unchallenged by Mr Tatton Brown, reveals details of a telephone discussion in October 2018 which the board originally claimed had no record.

He said “It appears that this note recording the Board meeting was included in emails to the former legal client of the Respondent, Janet Lynch; the person who I believe to be the current legal client Kate Anderson (who also wrote the note); the Chief Executive Ben Travis; and perhaps most significantly, David Cocke. It is of concern whether this was one of the documents and emails David Cocke decided to deliberately delete on the morning of 1 July 2022 before the hearing re-commenced.
He goes on ” Someone with the initials LA “confirmed all four Trust Medical witnesses felt strongly that we should agree the proposed settlement. It would be difficult to control media presentation of evidence that may emerge in the second half of the Tribunal” and “JB confirmed agreement to settle, noted potential exposure to the Trust if we didn’t.”.

“This shows to me that a key motivating factor of the Trust Medical witnesses, Janet Lynch, and the Board in their actions in this claim are fears about how the live evidence of the October 2018 hearing of the protected disclosures and the Trust’s response would be viewed by the public, doctors and
journalists in the public gallery.”
“Contrary to what Ben Travis has stated in his witness statement in this case about his preference for the case to run its course, the record does not show that he expressed any doubts to the Board, and it records that: “BT confirmed a view that we should settle”.

Ben Travis wanted to settle but his tribunal statement said the opposite

The Board member AJ stated the Board should attempt to control communications “beyond Chris Day himself”. They are clearly referring to those present in the public gallery observing the evidence and those reading the case papers and how they may disseminate such information. This also confirms my
pleaded case as to the evidence of the Trust’s response to my protected disclosures being the main driving force the Respondents actions.

The tribunal will reconvene on Thursday afternoon to hear final submissions from Mr Allen and Mr Tatton Brown without calling any more witnesses.

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Delegates from UK’s biggest public service union back a Bill of Rights to end once and for all discrimination against women

The short snippet above from Unison delegate Lianne Dallimore is the moment the 1.3 million member Unison trade union came out in favour of backing implementing the UN Convention on the Elimination of All Discrimination Against Women into UK law.

This is a very important move as the union will be the first big organisation to endorse a policy that will require women to get equal pay, equal rights to pensions, rights to child care fast and finally put an end to the painfully slow progress there has been to grant women equal rights to men.

Unison banners; pic credit: unison.org

Unison is one of the largest trade unions in the UK It has a woman general secretary, Christina McAnea and women outnumber men as members by a huge majority. There are over one million women members to 300,000 men. Most of its members are among the lowest paid in the country whether they are teaching assistants,, dinner ladies, low paid NHS staff or local authority workers.

Unison is also an influential union in the Labour movement and in the Labour Party. So its delegates decision to endorse such a policy will now mean the national executive committee will have to decide whether to back it. If it does the Shadow Cabinet will have to sit up and take notice – and it will put pressure on Labour to include a promise to do so in their next party manifesto. Angela Rayner, the deputy party leader, has previously backed implementing Cedaw.

The full motion read;

Conference we call on the National Executive Council to:

1) Work with National Labour Link and the national women’s committee to develop a comprehensive campaign for the implementation of CEDAW into domestic legislation;

2) Work with Learning and Organising Services (LAOS) on developing a training and awareness package on CEDAW for activists and members;

3) Report back to National Delegates Conference 2023 on progress made.

North Cumbria Northumberland, Tyne and Wear Health

It also comes at an opportune moment as Boris Johnson’s government is under fire from the United Nations for taking far too long to implement a convention that Margaret Thatcher signed up to in 1986.

The Labour Party went part of the way introducing the Equality Act, which became law in 2010 – but it is still a half hearted piece of legislation – more bark than bite. Nicola Sturgeon, the Scottish first minister, has gone further by including in her last manifesto a promise of legislation implementing it in full.

But she is up against Boris Johnson – who shows not the slightest interest in this issue – and has blocked at the Supreme Court any chance of Scotland introducing a parallel law implementing the UN convention on the rights of the child, which the UK has also ratified but not properly implemented.

The decision by Unison at its delegate conference, which endorses a report prepared by Dr Jocelynne Scutt, President of the Cedaw Tribunal, that calls for sweeping reforms to radically change the position of women in society – from immediate equal pay to ending the long running sore that has bedevilled 3.8 million women born in the 1950s who had to wait six years to get their pensions and were never properly informed by the change.

Ground breaking issue

Last year the CEDAW People’s Tribunal was held. his was a ground breaking tribunal backed by Garden Court Chambers where academics, activists and women’s rights experts produced a wide range of evidence-based policies to end women’s discrimination.

The union’s backing is an important development for CEDAWinLAW which I am a patron, to get this issue on the agenda.

Last year some detractors, sadly a number of them professional women, tried to rubbish the CEDAW People’s Tribunal as though the whole hearing was a waste of time and space. They would rather keep women in their place than fight for change.

Another tribunal hearing on the way

Next month CEDAWinLAW will hold another tribunal to specifically look again at the issue of 50s women and their loss of a pension and how it happened.

In the meantime the action by Unison delegates will only spur women who want change now – not dragged out for decades – to continue the fight.

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Jeremy Hunt and Sir Norman Lamb back whistleblower doctor’s epic patient safety struggle at a tribunal from Monday

Official portrait of Jeremy Hunt. Pic credit: Parliament.uk

Trust wants to ban two expert anaesthetists from giving evidence for Dr Mark Day

An epic nine year struggle between junior doctor Chris Day and Lewisham and Greenwich NHS trust over patient safety at an intensive care unit and accident and emergency department comes to a head at 15 day employment tribunal on Monday.

The story began in August 2013 when Chris Day, a junior doctor initially complained about inadequate staffing. It got worse in January 2014 when he was working overnight in the intensive care unit at Queen Elizabeth hospital in Woolwich when two locum doctors failed to show up. He had to cover other wards and A&E and reported his concerns to managers. He saw this as putting patients in such a sensitive area at serious risk.

extraordinary convoluted story

What followed is an extraordinary convoluted story of denial of the problem by the trust, misleading statements, poor investigations, threats of a huge legal bill which led him at one stage to settle the case only for it to be re-opened at a hearing before another High Court judge. There is a detailed blog by Dr Moosa Qureshi on CygnusReports.org which goes into forensic detail of the twists and turns of his case so I won’t repeat all the detail. I recommend you read his account. The costs of the protracted legal action to the NHS trust now amount to little short of £1million

A recent blog on my site looked at one aspect of the case, illustrating what appear to be underhand methods by a former dean at Health Education England to persuade Sir Norman Lamb, then a Liberal Democrat MP, not to pursue Dr Day’s case. Health Education England disowned his action at an employment tribunal and succeeded at being taken off as a party to Monday’s proceedings.

The issue will not go away next week as unusually Jeremy Hunt, the former health secretary, will give a statement to the tribunal, as a witness for Chris Day.

Sir Norman Lamb

Sir Norman Lamb, also a former health minister, will appear as a witness for Dr Day at the hearing so people are likely to hear a lot more about what actually happened.

Two highly distinguished consultant anaesthetists were also scheduled to give evidence on behalf of Dr Day. They are Dr Sebastian Hormaeche and Dr Megan Smith .

Dr Chris Day

The trust will try during the proceedings to ban them giving evidence.

The case is likely to look at the role of lawyers and also the role of M J Roddis, a clinical management consultancy in this case. They were employed by the trust to investigate this case and Dr Day claims they misrepresented his evidence, played down the problems, and omitted some damaging information about patient care.

The tribunal hearing will not be available on line as the court has decided in advance it will be an ” in person” hearing – even though three of the first five days will be held during a national rail strike.

Nor is it likely to be officially recorded. But Chris Day, who is represented by lawyers paid by the British Medical Association, has engaged a Ministry of Justice approved note taking service so there will be a full transcript of the proceedings.

I put some points to the trust and asked them for any comments they might wish to make but officials did not respond.

UPDATE: Since this post was published the employment tribunal has done a U-turn and decided to hold the hearing online which means it will be more accessible to the press and public It will not be held at Croydon, south London as there was not a judge available to preside over the 15 day hearing.

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Manifesto: How Labour Party activists fought for Socialism in Liverpool and the bitter sweet results that followed

Poster for the new film

Manifesto is a new film out this week that explores in depth local Labour Party activists and their fight to get a Labour government elected in the December 2019 general election.

It is an unusual film as it covers a constituency – Liverpool, Walton – ignored by the national media -concentrating on the passion of grass roots activists in one of the poorest parts in Britain. It is also Labour’s safest seat.

The film conveys the idealism of the campaigners and how the last Labour manifesto under Jeremy Corbyn would have meant real change for the people of Walton – many relying on free school meals and food banks – by providing better schools, a better NHS, more worker’s rights and better wages. But it was not to be. Instead Labour lost the general election in the fog of the Brexit row where unknown bureaucrats in Brussels were scapegoated as holding the working class back and depriving them of their ” freedoms”.

A street in Walton. Still from the film

The prism the director Daniel Draper ( who was born and grew up in Walton) uses is to tell the tale through the eyes and voices of local activists -a group that are normally completely ignored.

He intersperses their views with quotes from Robert Tressell’s work The Ragged -Trousered Philanthropists – regarded by George Orwell as a ” book everyone should read”. This tells a semi autobiographical story of a house painter’s struggle to get work in Edwardian England. He died from TB in Liverpool Royal Infirmary and was buried in a pauper’s grave in the city. The link between today’s activists and his legacy is vividly portrayed in one scene in the film.

He also intersperses the dialogue with stills of part of the constituency showing the poverty and both neat and neglected streets.

A thoughtful Ian Byrne during the 2019 election count. Still from the film

The result is a bitter sweet documentary. The campaigning in Liverpool was a great success – with both Parliamentary candidates who are on the left of the party, Dan Carden ( Liverpool Walton) and Ian Byrne (Liverpool West Derby) returned with thumping majorities.

But in the rest of the country Labour lost badly -including two seats Walton activists were sent to help the party in Blackpool and Crewe.

Since then internal struggles in the Labour Party -including in Liverpool – have divided Labour activists and I am pretty certain Liverpool Walton is not a priority for the new leader Sir Keir Starmer – precisely because it is such a safe seat where Labour voters are taken for granted.

But in my view this would be a mistake. Labour has always been a broad church and the hopes, aspirations and frankly, eternal optimism to create a better society from the people portrayed in this film should not be ignored or squandered by party bosses in London.. The present mess and chaos we are in under this Tory government is too bitter a pill to swallow not only for the voters of Liverpool Walton but for everyone else. As Dan Carden, the MP for Walton said on the film before the result: “We can’t afford another five years of Tory government.”

Dan Carden during the campaign Still from the film

Initial screenings:

16 June: Picturehouse At FACT, Liverpool (Q&A: MP Ian Byrne, activist Alan Gibbons, director Daniel Draper, hosted by Ross Quinn)

16 June: Glasgow Film Theatre (Q&A: MSP Paul Sweeney & former MSP Neil Findlay, hosted by Ruth Gilbert)

17 June: Tyneside Cinema, Newcastle (Q&A: MP Ian Lavery, Laura Pidcock from People’s Assembly, activist Ben Sellers, director Daniel Draper)

30 June: Hyde Park Picture House, Leeds (Q&A: MP Richard Burgon & director Daniel Draper)

DATE TBC: Savoy Cinema, Nottingham (Q&A: MP Nadia Whittome & director Daniel Draper)

3 August: Duke’s At Komedia, Brighton (Q&A: MP Lloyd Russell Moyle & director Daniel Draper)

Further details of other venues including two in London will be on this link https://www.shutoutthelight.co.uk/manifesto

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Lord Reed: The Supreme Court President backing the government against the people

Lord Reed of Allermuir, President of the Supreme Court. Pic credit: judiciary.com

An influential all party report by peers and MPs published last week (see my report in Byline Times) found nine recent judgements by the Supreme Court were favouring the government over the individual.

The change appears to have taken place after Lord Robert Reed became President in 2020 replacing Baroness Brenda Hale of Richmond. It also follows a change in the composition of the court which is now almost exclusively male with just one token female judge out of 10.

The judgements of Lord Reed are hostile to women’s and children’s rights

I have since investigated further and found other cases where Lord Reed’s judgement have struck down opponents to Boris Johnson’s government particularly if they involve campaigning groups and they affect the welfare of women and children.

External view of the Supreme Court Pic Credit: Supreme Court

In one judgement he stated: “challenges to legislation on the ground of discrimination have become
increasingly common in the United Kingdom. They are usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.”

This as the report points out ” reflect the executive talking point that litigation is used by “activist lawyers” to “conduct politics by other means”. Such a comment could easily have been made by Priti Patel, the home secretary.

BackTo60 outside the High Court in better times

Now this view may well explain a decision not mentioned in the report concerning the fate of a judicial review brought by the BackTo60 organisation on March 30 2021. This is the case readers of this blog will be familiar (Delve and another v. Secretary of State for Work and Pensions)- involving a long standing campaign to gain full restitution for 3.8 women born in the 1950s who faced up to six years delay in getting their pensions. Since this ruling the Parliamentary Ombudsman has found partial maladministration in the arrangements for implementing this policy.

Lord Reed and two other male judges decided to refuse to hear the case at the Supreme Court saying the delay in bringing the proceedings was unarguable.

Now this is strange given that the Hon Ms Justice Lang – had granted the case for a judicial review on all grounds -and lawyers had been allowed to argue their case at the High Court and the Court of Appeal even though they lost. The only people who were really angry about the decision were government ministers at the DWP.

Michael Mansfield, QC ” activist lawyer”

Michael Mansfield QC who argued the case for Backto60 said the Supreme Court’s was a “paper thin refusal”.

In my opinion the real reason may well have been that Lord Reed loathed campaigning groups like BackTo60 and hated well known ” activist lawyers” like Michael Mansfield. Also his decision would not affect a single man -only elderly women would suffer.

The second case which is in the report concerned another case brought by women and children about the government’s two child limit on tax credits and benefits for children. Again it involved the DWP. The claimants had used the UK’s ratification of the UN Convention on the Rights of the Child to argue discrimination. Lord Reed ruled in July 2021 that this was ” out of order” and the UN convention could not be used in arguments because the UK Parliament had not passed specific legislation to implement the convention. This was precisely the opposite of what he argued in 2015.

Lord Reed backed government savings over helping children

But worse than that his judgement gave away his hostility to the plight of women and children.

 “The Court concludes that the two child limit has an objective and reasonable justification, notwithstanding its greater impact on women. The measure pursues a legitimate aim: to protect the economic wellbeing of the country by achieving savings in public expenditure and thus contributing to reducing the fiscal deficit. It was inevitable that, if that aim was to be achieved, there would be a disproportionate impact on women, since women are disproportionately represented among parents responsible for bringing up children  Parliament decided that the disproportionate impact of the two child limit on women was outweighed by the importance of achieving its aims. There is no basis on which the Court could properly take a different view.”

The third case, not mentioned in the report, involves the Scottish government’s attempt to introduce legislation to implement in full the UN Convention on the Rights of the Child. This alarmed Boris Johnson who did not want the Scottish Government implementing a convention that the UK had ratified which he felt should be done, if at all, by the Westminster Parliament.

I wrote about this here. The Supreme Court sided in October 2021 with the UK government blocking the Scottish Government doing this which also meant that other planned legislation implementing UN conventions on discrimination against women (CEDAW), ethnic minorities and the disabled would be stalled.

Lord Reed’s decision tore up part of the SNP manifesto

This decision led by Lord Reed again limited rights for women and children but also tore up the Scottish National Party manifesto pledge to introduce legislation. Ironically given all the fuss over judges being accused by the Daily Mail of being ” enemies of the people”, it makes Lord Reed, a Scottish judge who would know all about Scottish politics, an enemy of the Scottish voter who had elected the SNP government and expected them to fulfill their promises.

My conclusion is both Boris Johnson and Dominic Raab, the Lord Chancellor, literally know they have a friend at court, the highest court in the land. They know they can introduce what restrictive legislation they want, and provided it is passed by Parliament, the most powerful judge in the land’s loathing of campaigning groups, will help them get their way. And women who only have a marginal role in the Supreme Court, better not expect any help either from a man who appears to have a bit of a misogynistic streak when it comes to backing their corner.

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Backtracking and pussy footing: How a top judge reneged on plans to start nationwide recordings at tribunals

Employment Tribunal Open Justice Campaign

Judge Brian Doyle, former president of employment tribunals for England and Wales Pic credit: Salford University

New information has emerged showing how HM Court and Tribunal Service has backtracked and pussy footed over ending the scandalous failure to provide proper recordings and transcripts at employment tribunal hearings.

This failure led to a letter signed by over 320 people -including 80 NHS consultants and leading professors- demanding an explanation from Sir Keith Lindblom, senior president of the tribunals, on why this has not been done. There is widespread dissatisfaction among whistleblowers both in the NHS and industrial hearings about this.

Now minutes from a national tribunal user group have revealed that a plan to introduce the recording of tribunals across the country was dumped – despite resources being available – two years ago.

Judge Brian Doyle, the former president of Employment Tribunals for England and Wales, promised on February 27, 2019 to introduce the recording of tribunals, at a meeting of the group. The group is attended by senior judges, representatives of the TUC, ACAS the Law Society, the Business Energy and Industrial Strategy department and the Citizens Advice Bureaux

Roll out of recording facilities planned to be completed by March 2020

The minutes record: “The President addressed the need for audio-recording of ET hearings. Resources had been found to enable this to be achieved and both the Employment Tribunal and the First-tier Tribunal would benefit from the acquisition of recording equipment in hearing rooms. It was planned to be a gradual rollout from April 2019 to March 2020.”

He went on: “Testing of equipment would be required. A nationally agreed protocol would cover the practice of recording hearings and the provision of transcripts. If a party were to ask for a transcript, as in the courts it would be on the payment of a fee.”

“The President said that audio-recording would be welcome for a number of reasons: reducing the need for the judges to take verbatim notes; providing parties with a transcript of the hearing; improving the conduct of hearings generally; providing some discouragement for litigants or witnesses to misconduct themselves in hearings; and giving leadership judges the means to check complaints about how a judge allegedly behaved in a hearing (and thereby perhaps discouraging unmeritorious complaints).

By November 2019 the minutes recorded: “The President updated the members on the intention to provide audio-recording equipment in all Employment Tribunal hearing rooms. A budget for the equipment had been secured, but making this proposal operational was taking a little longer than intended because it was important to get the right recording equipment and to have in place a protocol for its use. “

Yet by March 2020 when the pandemic struck nothing appears to have been done -apart from a few trials. One of them at social security and child support hearings in Exeter had already been a success before February 2019.

Judge Barry Clarke, current president of employment tribunals for England and Wales

Now two years later under a new president Judge Barry Clarke there appears to be little progress – no protocol has been published let alone sent out for consultation. If there had been transcripts could have been provided in a number of highly controversial whistleblowers cases – notably the case between Alison McDermott and Sellafield and the Nuclear Decommissioning Authority; Usha Prasad and Epsom and St Helier University Health Trust and further cases involving the junior doctor Chris Day and the Health Education England.

Instead there appears to be a hostile attitude by some judges to any transparency in the tribunal system.

I would cite Judge Hughes as a good example. She ruled in a Birmingham employment tribunal case ( Mr R Kumar V MES Environmental Ltd.) The case involved racial discrimination and victimisation. He lost the case and applied for a transcript.

She ruled this was ILLEGAL. He was told by a court administrator:.

“Employment Judge Hughes has asked me to inform you that the reason you cannot apply for a transcript is because you are not legally entitled to make such an application. You are referred to the Employment Tribunals (Rules of Procedure Regulations) 2013. “

The judge doubled down the was “no legal mechanism by which an application for a transcript of Employment Tribunal proceedings can be made”. The judge stated that there was no prospect of her decision being varied or revoked “because there is no legal right to a transcript of Employment Tribunal proceedings”.

Judge Auerbach Pic Credit: Law Gazette

Two months ago this ruling went before Judge Simon Auerbach at an appeal tribunal. He revoked this saying that since in this case HMCTS had made a recording of the hearing Mr Kumar was entitled to apply for it and it was not illegal to do so.

Now judges are many things but they are not stupid. It seems extraordinary that Judge Hughes was not aware that discussions were going ahead at the time to introduce recordings and she must known in that case the hearing had been recorded. She obviously did not want him to have it.

Similarly anti recording attitudes seem to be propagated by Judge Tony Hyams-Parish in Dr Usha Prasad’s case ( see previous blogs) and by the Judge Lancaster in Alison McDermott’s case agaInst Sellafield. He refused Alison’s request for a recording even though he had the equipment to do so. Both just say there is no recording so you cannot have it. Hyams-Parish also believes that journalists should not have access to the bundles in cases either.

Alex Chalk MP, the solicitor general

But there is worse to come. Anybody listening to a tribunal hearing is banned from recording it. One person who did is now being prosecuted by the solicitor general., Alex Chalk, the Conservative MP for Cheltenham.

Katarzyna Paczkowska has had her case referred to the High Court after she used a recording to challenge a tribunal judgement. Her case is complicated and runs to 1800 pages so I won’t go into it now – except to say how ferociously this rule is being used without the tribunals agreeing to record the hearings. Manchester employment tribunal and her respondent, R-com. Consulting, raised the issue.

For my mind the present situation is one of drift, back tracking and pussy footing by the top judges.

A Ministry of Justice Spokesperson said:

“Though there is no legal requirement to record employment tribunals, handheld recording devices have been made available through this pilot which started in September 2019.”

My understanding is that HMCTS has an aspiration of a nationwide recording of all tribunals but no timetable yet on how this going to be achieved. But there does not appear to be any drive and determination to get this done, even though resources had been put aside. It is simply not good enough.

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Senior MPs challenge DWP on “shambles” after leaked internal documents and screenshots on Westminster Confidential reveal pension claims are being dumped

Dame Meg Hillier and Stephen Timms, chairs of the influential Public Accounts Committee and Work and Pensions Committee, have written to Peter Schofield, permanent secretary at the DWP, seeking an explanation why thousands of pensioners are being discouraged from claiming money they may be owed by the ministry.

The letter -published on the Work and Pensions Committee website – follows a high critical report by the Public Accounts Committee on the handling of pension back payments- and an articles on this website revealing internal advice given to ministry staff by senior management at the DWP.

It refers to my blog on February 10 which you can read here. This included an internal memo to people handling telephone callers seeking claims and a management training exercise aimed at speeding up the number of cases settled by staff by ignoring complicated claims, nearly all from women.

The most controversial was the ” drop and go” approach which urged staff ” if a case is complex or take a long time to resolve, move on to the next one in order to maximise the number of customers we can help today.”

Peter Schofield

The letter asks Peter Schofield to explain. It says:

“A report in Westminster Confidential on 10 February included screen shots, apparently of DWP internal documents, indicating that guidance to staff on handling calls about underpayments is to ‘close the call’ and only take details if the customer insists, unless the case is from or about someone who falls into one of the following four groups:
• A married woman whose husband claimed his State Pension before 17/03/2008
• An individual aged 80 or over who does not get any State Pension or only Graduated Retirement Benefit
• Someone who has died and may have been underpaid
• Someone who is divorced and wants to know how it impacts their State Pension.
It also refers to a message on the helpline which starts by telling callers that, if they are calling as a result of media coverage, “please be aware you do not need to contact us.” It goes on to tell people to stay on the line if they fall into one of the above groups.
Written in bold the MPs ask:

• What is the status of the documents quoted in the Westminster Confidential report? Do they represent current policy? If not, what changed and when?
• How will you evaluate the effectiveness of the revised information on Gov.UK in helping those who may be affected to understand their position and to take appropriate action?
Do you have plans to review your communication strategy and take further action if, for example, only a small number of those affected contact you to report a change of circumstances or make a claim?

The MPs say : “People in the four specified groups appear to be those who need to take action to receive an increase in their entitlement and, when they do claim, will generally only get twelve months’ backdating. Unlike those covered by the LEAP exercise,[This where the government has been mandated to pay back money such as the 135,000 pensioners who have been underpaid] there is no legal obligation on the Department to seek them out or pay them arrears.

The Department told the PAC that it could not publish guidance for those who may have been underpaid – such as an online assessment tool – because it believed it could not accurately cover all possible underpayment scenarios.

We remain extremely concerned – MPs

The letter goes on : “The Government’s response to the PAC report refers to revised information on Gov.UK which emphasises further that some individuals must make a claim and how they can do this. It is also working to provide a more direct route for those enquiring about underpaid State Pension in respect of a deceased customer. While this is welcome, we remain extremely concerned that the limited information on Gov.UK, together with the guidance and telephone message may discourage some from taking action that could increase their entitlement.”

The letter also discloses that a third of the way through the exercise to pay back the 135,000 pensioners owed money only 10 per cent of the cash has been paid out. This suggests that it may take much longer to pay the money to older pensioners who may not have long to live.

The MPs ask the permanent secretary to explain “The average and the longest amounts of time that pensioners who have contacted you about a potential underpayment can expect to wait for a full response.”

It is excellent that MPs are pursuing this story. The full letter is here. The DWP have until May 12 to respond. The ministry better have a good explanation.

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Judge backs DWP to deprive tens of thousands of elderly women of extra pensions

Judge Nick Wikeley giving his ” top tips for tribunal representatives on benefit appeals” at a study day.

Pic credit: Twitter

But his judgement admits national insurance is ” institutionally sexist”

Last month Judge Nick Wikeley, an administrative court judge, backed the Department for Work and Pensions to stop the pay out of millions of pounds to the most elderly pensioners in the country just as the ” cost of living crisis” started to hit home.

He took the decision on technical grounds despite his ruling conceding that the national insurance system was ” institutionally sexist” and that the women involved were likely to be the poorest pensioners in the country.

The case has considerable echoes with the one brought by BackTo60 for full restitution for the loss of their pensions after not being given enough notice of the raising of the pension age from 60 to 65.

Hugh Mercer QC Pic credit: Essex Court chambers
jane Russell Pic credit: Essex Court Chambers

It was brought by an 83 year old pensioner just known as Mrs GM with the pro bono backing of two barristers, Hugh Mercer QC and Jane Russell, both from Essex Court chambers. The DWP employed Julian Mitford QC and Ms Naomi Ling, who represented the DWP in the BackTo60 case.

Like all pensions cases it is complicated but also shocking. Her appeal contains a rule change for pension claimants brought in 2008 under Gordon Brown’s Labour administration.

Until 2008 women who claimed their own pension under the old pension system were also entitled to a second pension based on their husband’s NI contributions the moment he retired. But they had to claim it in their own right and the onus fell on the husband to tell them.

Labour changed this archaic system but did not backdate it

From March 2008 Labour changed this archaic system and women automatically received a second pension when their husband retired. But it was not backdated.

Mrs GM is one of those women in the first group. She got her pension in 1998 and her husband retired in 2000. She did not realise she should claim the second pension until 2017 – 17 years later. The DWP awarded her the second pension but only backdated it by one year. She has lost 16 years of her second pension. The pension is worth £82.45 a week.

Her case was she should be entitled to all her lost money =- either to 2008 when the law changed – or on human rights grounds and direct and indirect sex discrimination way back to 2000 when her husband retired.

The hearing turned into a battle between the DWP – which didn’t want to pay it- and human rights lawyers who thought she should be paid.

Sir Steve Webb

Sir Steve Webb, the former Liberal Democrat and coalition pensions minister, weighed in on her side while the DWP produced a star expert witness – Mr Lyndon Walters, a policy advisor to the DWP’s Decision Making and Appeals Team who was familiar with all the detail of the changes.

Sir Steve’s case centred around DWP policy and its failure to inform women properly about pension changes. The judge commented:

“The Webb W/S [Witness Statement] particularises the ways in which women, and especially married women have been, and to some extent still are, disadvantaged by the old system of retirement pensions, and seeks to quantify those affected. There are, with respect, undoubtedly a number of very well-made points in the witness statement, but they are primarily relevant to high level policy considerations. Understandably enough, and despite his distinguished ministerial career, there is much less about the nitty-gritty (or granular) operational issues underpinning the Department’s pragmatic approach.”

Indeed this moved to the heart of the judgement. The judge was more interested in the internal problems the DWP had in paying out pensions than the justice women were entitled to get the pension in the first place.

This showed up in the extraordinary support by the judge for the arguments put forward by Lyndon Walters.

The judge argued: “The Walters W/S makes out a compelling case for why the 2008 amendment took the exact form that it did. Mr Walters explains the general approach taken to encouraging claims for benefits , the practical considerations and rationale behind the introduction of regulation and the difficulties that would have lain in the way of extending the benefit of the 2008 amendment to those married women whose husbands had already become entitled to their Category A pension before that date In particular, he shows how it was that the advent of new IT systems enabled the Department to assess whether the wife of a Category A pension claimant was herself entitled to a Category B pension at the time of his Category A claim without the need for a separate claim being made. This is an informed and authoritative account that outweighs the Webb W/S, which lacks the same level of granular detail.”

Too difficult and expensive for the DWP to compensate the women

Very simply Walters had argued that it was too difficult and expensive for the DWP to inform the women of their rights. “Mr Walters explains, there was no functionality on the system to alert us to those women who were already entitled to have claimed for their category BL pensions but had not done
so” He concludes:

To identify these individuals, we could have run a search, or ‘scan’ in 2008. However, the task of performing such a search and reviewing the records of those identified, then contacting all of these
individuals and dealing with their entitlements would have been a significant additional burden on the Department, when the purpose of the PTP programme was to try to improve the efficiency and productivity of the system.”

The arguments over human rights were dismissed as peripheral – rather like in the 50swomen case the lawyers had argued: this was “unlawful discrimination on grounds of sex to inform a husband of a wife’s rights and then to reproach a wife of not availing herself of her rights”.

But then the judge admits: “Even so, although Mr Mercer did not employ such terminology, the label of institutional sexism may not be out of place in describing the national insurance scheme. This is undoubtedly, the context for the gradual amelioration of the position of women, and especially
married women, in relation to contributory benefits, including provision for their access to Category B pensions.”

And he further admits that it is like that the majority of women who have lost out in that age group could be among the poorest pensioners with the lowest pensions.

Frankly the judge’s decision in this case is remarkably complacent and far too favourable to the DWP. He seems to be more interested in the problems the DWP would have tracing the women than the loss the women have suffered under what was an archaic system. He is also far too complacent about the pace of redress for women who have suffered discrimination. That is another reason why we need to implement the UN Convention against all forms of discrimination against women (CEDAW) in full to stop this leisurely progress to righting centuries of discrimination. There will be hearing in July see the website for more information. This is particularly poignant in this case as the people involved are coming to the end of their lives.

A thank you to one of my readers Jeff Roberts, for drawing attention to this judgement. You can read it in full below.

Click to access UA_2021_001262_RP_CP_317_2021c.pdf

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