
A ground breaking decision by the Information Commissioner which would lead to the end of secrecy around the behaviour of judges will soon be tested in one of the highest tribunals in the country.
For years the Judicial Conduct Investigations Office, which, among other matters investigates complaints against judges, has claimed it is a private independent body which is not subject to the Freedom of Information Act, which covers the rest of Whitehall and the courts. It tells anyone who puts in a request that a reply will be discretionary and refuses to give the information.
And the Ministry of Justice, which is subject to the Freedom of Information Act, if asked the same information sidesteps the issue by saying it doesn’t hold the information.
Now John Edwards, the Information Commissioner, has blown the JCIO’s defence apart by saying it is a public body and like the rest of government should have to answer freedom of information requests.
Information Commissioner backing complainants
By doing so, he is backing at least two complainants who have taken their cases through tribunals plus numerous other people who have sought to get into the public domain how many judges are subject to complaints. The whole matter is going to be settled in an appeal to the Upper Tier Tribunal after a judge ruled that the decision by the Information Commissioner has to be included in the proceedings.
The Ministry of Justice, on behalf of the JCIO, is seeking to squash the decision. No date has been fixed yet for the hearing.
The Information Commissioner’s says: “the Lord Chancellor and the Lord Chief Justice (now Lady Chief Justice)are jointly responsible for judicial discipline’. The JCIO, therefore supports not just the Lord Chief Justice but also the Lord Chancellor in relation to such matters.
“This highlights how the structure of the JO and JCIO is not simply to support the judiciary, with wider public functions included within its ambit. The Commissioner further notes that the Judicial Appointment and Conduct Ombudsman, the statutory office sitting at the head of the complaints process of which the JCIO is part, was added by parliament to the scope of FOIA. In the Commissioner’s view, it seems unlikely that it would have concluded that the operation of part of this process should fall in scope of FOIA, with others outside of it.”
“Based on the summary above, the Commissioner’s conclusion is that the JCIO is part of the JO, which, while operating at arms length in practice, is still part of the MOJ for the purposes of FOIA.
In light of this, it is not necessary for the JO or JCIO to be listed separately in Schedule 1 FOIA for it to be within scope of the legislation.”
He adds:” Any information request made to the JCIO is effectively a request made to the MOJ and should
be treated as such. This is important in order for the MOJ to carry out its functions under FOIA, and to enable individuals to exercise their statutory right to public information.”

The Information Commissioner’s decision is very important because of its context that judges are being protected by senior members of the judiciary from any scrutiny about their behaviour. The BBC and this blog have already reported that judge Philip Lancaster, an employment judge, has received as many as 12 complaints from women who have appeared before him that he is patronising, biased and rude towards female litigants. See my blog here.
Barry Clarke, President of the Employment Tribunals in England, steadfastly refuses to entertain any criticism of his judges thereby blocking any information about complaints. And Baroness Sue Carr, the Lady Chief Justice, appears to be equally protective.
So this ruling while not likely to see the naming of judges will be able to provide the context of just how many complaints there have been and upheld and show the scope of the problem.
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