Ministry of Justice and Lady Chief Justice Dame Sue Carr refuse to explain the lawfulness of withholding official ET court records

Posted on September 23, 2024 by davidhencke

05/07/2024. London, United Kingdom.Chancellor and Secretary of State for Justice, Shabana Mahmood. poses for a photograph following her appointment to Cabinet by Prime Minister Sir Keir Starmer in 10 Downing Street. Picture by Lauren Hurley / No 10 Downing Street

By David Hencke and Alison McDermott

Direct complaint to the Lord Chancellor signed by 150 people is being blocked by officials at the Ministry of Justice

Whitehall and the judiciary are engaged in an extraordinary exercise to block, obfuscate and deny there is a legal issue over the public release of judge’s notes where they amount to an official record in employment tribunals.

We are now in the absurd position of Barry Clarke, the President of Employment Tribunals in England and Wales, both admitting the judge’s notes where tribunals are not recorded are the only official record but saying at the same they must remain private because they are personal notes under the Data Protection Act.

Employment tribunals are already in transition. After a new practice ruling the aim is that all hearings will be recorded but that is not happening yet in many cases. Also transcripts of the hearings can be made available but litigants have to buy them at huge cost and are not provided before the six weeks deadline to appeal. So what’s the point of them ?

But for a majority of tribunals the only official record is the judge’s notes – which can be used by appeal judges when they are adjudicating on an appeal to guide them. Barry Clarke has recently ruled that they are the official record but the public, press and both parties involved in a case cannot see them.

Thus the one vital official record of what the judge has recorded about the case is kept secret – contrary to any policy of transparency and open justice. It also means judges are not open to scrutiny, could be biased against either the claimant or defendant, are out of step with other European court systems and in the days of digital recordings, keep an archaic system of hand written notes. It also means if there are complaints against judges – the secrecy of the notes means the judge can withhold the information to prove it which is very helpful to an errant judge.

So what is legal position of this which allows this type of official record to be withheld? This is the question that led Alison McDermott, a former ET complainant against Sellafield, and 150 other people to wrote to the Lord Chancellor demanding an explanation, using the examples I have quoted and many more.

The letter is here. But guess what? You can’t send it direct to the Lord Chancellor’s Office or even to the Lord Chancellor as an MP unless you are a constituent in Birmingham, Ladywood. Instead you can only write to the ministry of justice and hope it can be passed on.

So Alison McDermott and I decided another tack. I put questions into the Ministry of Justice press office to ask for explanations. Alison had previously been told by Dame Sue Carr, the Lady Chief Justice that the only way she would get answers was to go to the Appeal Courts – an incredibly expensive business. This is also absurd as it puts the onus on the claimant to get a ruling to clarify the law and makes a lot of money for lawyers. Most people are not involved in tribunals so why should they be denied from knowing where the law stands?.

These are the questions I put to the Ministry of Justice which it refused to answer:

1.Does the MoJ agree that an official record of legal proceedings, including Employment Tribunal hearings, must be made available to parties and the public?

2.Which specific law or authority allows judges to withhold their notes from ET proceedings, given that ET President Barry Clarke has recently confirmed that these notes serve as the official record where no other record exists?

3. If no such law or authority exists will the MoJ commit to releasing all judges’ notes?

4.. If not, does the MoJ acknowledge that judges’ notes cannot be considered the official record, as official records must be accessible?

5. In the absence of an accessible official record, does the MoJ agree this breaches the right to a fair trial under Article 6 of the Human Rights Act? If not, what is the justification?

6. Why is the MOJ suggesting that this can be resolved by individual appeals, as proposed by the Lady Chief Justice to Ms McDermott, rather than providing a clear policy response that would benefit all ET users?

Answer came there none. The ministry declined to answer any questions and said it was a matter for the Judicial Office to answer the questions.

I put the same questions to the Judicial Office press office. I heard nothing for a week and then sent them a reminder. The initial response was to refer them back to the Ministry of Justice until they suddenly realised I had already contacted them.

The office then sent a reply. This is it.

“We have answered the questions we can from a judicial perspective (see below) but other questions are for not for us and you may wish to ask other parts of Government.

Parties involved in an Employment Tribunals are given decisions following a hearing. If the decision is a judgment, the Tribunal will either give an oral judgment with reasons or reserve its decision and give a written decision at a later date. ” It goes on to quote existing rules and procedures.

So here we have it. They haven’t answered my questions. There is a failure to confirm what the lawful basis is for a judge to withhold the official record of an ET hearing and they have side stepped whether the refusal to do so breaches the right to a fair trial.

Judge Barry Clarke, president of the England Wales employment tribunals- an outlier with Europe advocating secrecy

Alison using AI found how outdated and Nethanderal this is compared to other advanced democracies. In France, Germany, Spain, the Netherlands, Sweden, Belgium and Italy all parties have access to the judges’ notes. This leaves the UK as an outlier, failing to provide basic transparency in proceedings that can have life-altering consequences. .

It added: “The practices in these European countries generally support greater transparency and access to court records, including judges’ notes, in employment cases. This trend aligns with principles of fair trial and effective appeal rights, as parties are given the opportunity to fully understand and, if necessary, challenge the basis of decisions made against them.”

The conclusions using AI are very powerful;

“The current state of the UK’s employment tribunal system is untenable and legally questionable. It operates on a contradiction that undermines the very principles of justice it’s meant to uphold. The solution is clear, legally grounded, and non-negotiable:

Judges’ notes must be released to all parties.
All hearings must be recorded.
These records must be made accessible to all parties involved.
These steps are essential for maintaining the integrity of the UK’s legal system, ensuring compliance with human rights law, and upholding the principles of natural justice and open courts. The time for obfuscation and delay is over. It’s time to resolve this legal paradox and restore faith in our justice system. Release the notes, record the hearings, and let justice be truly seen to be done.”

Only in the UK do we pursue a policy of secrecy masquerading as privacy to cover up official records, frustrating claimants and respondents in employment tribunals, and protecting judges from any scrutiny that could effectively challenge them. What a backward country we are. A judicial review can change this and looking at procedures in Europe eventually lead to a well deserved adverse ruling against the UK in the European Court of Human Rights. We understand that the Lord Chancellor holds the copyright to all court records so she can decide to release them.

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The extraordinary failure by the Solicitors Regulation Authority to police lawyers who misuse non disclosure agreements to silence whistleblowers and employees

Posted on August 24, 2024 by davidhencke

If you were thinking of complaining about your employer’s solicitor trying to force you to sign a NDA barring you from complaining to the police, another regulator, or ban you from making freedom of information (FOI) requests or subject access requests to your company or public body, you might as well not bother.

For new figures released this year following a request under the SRA’s voluntary Transparency Code (it is not signed up to FOI) reveals how miniscule the action over misused NDAs is taken by the SRA that polices over 167,000 practising solicitors.

Over the last four years, believe it or not, action has only been taken in less than FIVE cases where NDA’s are involved out of the 10,000 complaints about solicitors received by the SRA every year.

Figures released to David Change (he is on X @DavidChange12) where the sole complaint was about the misuse of Non Disclosure Agreements amount to just 41 over the last four years. Of these 13 were not investigated and there were fewer than five warning letters issued over the four year period, similar for letters of advice, and public and private rebukes. In some years the SRA was almost completely inactive. In 2023 it is issued just what looks like one public rebuke. For the first five months of this year it says it has had just one complaint and taken no action so far.

One of the complaints I know about involving a whistleblower in Sellafield, the nuclear waste site, the documents I have seen, show that solicitor Emma Mills, a partner in law firm DLA Piper, had tried to force the person to sign away his rights to make FOI and Subject Access Requests to Sellafield and withdraw a complaint to a regulatory authority about the company’s human resources department. The SRA replied to him that she had behaved correctly without it looks like bothering to investigate further. Yet the Information Commissioner’s Office told me that asking anybody to withdraw FOI’s or SAR’s was outside the law.

The SRA’s figures do contain a caveat. They did not check whether among cases whether the complaint against other activities by solicitors included a complaint about misusing NDA’s, so the figure could be higher. It was too expensive under FOI guidelines for them to check further.

The fact that there is a problem with the misuse of NDA’s is not disputed. A snapshot of the present situation was put together by the Legal Services Board and published this year.

Concealed illegal activity included harassment and discrimination

The report said: “Examples of alleged illegal activity reported by respondents as having been concealed by NDAs included unlawful harassment and discrimination (e.g., on the grounds of sex, race, disability
and maternity), sexual assault and abuse, fraud and tax evasion. Many respondents reported NDAs being related to employment disputes. In defining misuse, some respondents questioned whether NDAs should ever be used to conceal misconduct, prevent a victim of wrongdoing from seeking support or reporting to regulatory or law enforcement bodies.”

The report was a snapshot – for example there was just one case cited involving the NHS – when certainly health trusts use them more widely to cover up scandals in the health service. It showed that many employees pushed to sign NDA’s, felt an imbalance of power between their knowledge of what they were signing and the company’s lawyers and were bullied into signing NDA’s. Others felt the firm did not care about their mental state or threatened them with facing an employment tribunal where the company’s lawyers would expose their failings.

There was also a mismatch between the fine words of the evidence given by the SRA to the Legal Services Board who showed they understood that lawyers did pressurise people to sign NDA’s and the actions it took when it received a complaint as shown by these statistics.

What this pointing to is a change in the law governing the issue of Non Disclosure Agreements which should be outlawed if they contain any reference to people losing rights given by Parliament to make FOI or subject access requests or complain to any regulatory authority including the police and HMRC.. What is clear from the Legal Services Board report is that many employees are totally unaware of their rights which can then be exploited by dodgy companies and irresponsible public authorities. As for the SRC this record of handling complaints is abysmal.