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Sellafield Whistleblower Case: Claimant faces a £20,000 legal bill for necessary Freedom of Information and Subject Access Requests

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Alison McDermott: Whistleblower

By Philip Whiteley and David Hencke

A law firm in the Sellafield whistleblowing case has put in a bid for £20,000 costs against the claimant Alison McDermott, in part to deal with Freedom of Information requests – even though it emerged at the Tribunal hearing that the firm’s client had failed substantially to provide relevant evidence.

The costs application by Pinsent Masons on behalf of the Nuclear Decommissioning Authority, if successful, could set a precedent that weakens a citizen’s right to request information. It would appear to undermine the will of Parliament, given that when the Freedom of Information Act was passed MPs specifically rejected the idea of levying a fee for FoI requests.

The other law firm in the case, DLA Piper, simultaneously put in a bid for £20,000 costs against Ms McDermott – the maximum allowed without being subject to a further hearing – listing other factors, principally changes the claimant made in the detail of her case.

Sellafield site Pic credit: gov.uk

At the three hearings in the case held so far there has been overwhelmingly strong evidence indicating that Ms McDermott’s FoI requests were both proportionate and necessary. She said: “The governing body [the NDA] in its ordinary disclosure, released one email. Then, when I put in direct subject access requests, many more emails proved that they had been asking questions about the termination of my contract. Then, at the hearing it emerged that Heather Roberts [former HR director at Sellafield] had withheld a key document that said that the NDA was very concerned about the timing of my termination and that conversations had been held. This information was never released.

“The Freedom of Information requests also revealed that contracts had been awarded for HR services, including EDI [equality, diversity and inclusion] services, for the value of £17 million. It was only after that that they [Sellafield] switched from financial reasons [for dismissal] to one of performance.”

Ms McDermott, an independent EDI consultant hired by the nuclear plant Sellafield, had her contract terminated the first working day after making a report detailing systemic discrimination and bullying at the plant, a pattern confirmed by a BBC investigation which reported earlier this year.

At the tribunal hearing in June-July 2021 her barrister, James Arnold, pointed to directly relevant evidence only coming to light shortly before the hearing – after a period of more than two years since litigation began. He was not contradicted by either Respondent (see our coverage on 30 June). This hampered Mr Arnold’s ability to call witnesses, and cross-examine them. Ms McDermott was not successful in linking the detriment she experienced to the reports she made, although she is appealing the ruling.

Law Firm Pinsent Masons claimed FOI requests were ” vexatious”

The law firm, Pinsent Mason, claimed that the requests for Freedom of Information and Subject Access Requests, were part of vexatious, abusive, disruptive and unreasonable behaviour by Alison McDermott against both Sellafield and the Nuclear Decommissioning Authority.

In a letter to the court the firm said she had “submitted four Data Subject Access Requests and six Freedom of Information Requests over the last three years, the majority of which were complex and involved significant work and additional legal time and cost by the Second Respondent [the NDA] to answer.”

It added it meant ”significant inhouse legal resource time and wider staff management time responding to data subject access requests and Freedom of Information Requests linked to the claim”.

Pinsent Mason said the NDA had spent £200,000 fighting the case and wanted £20,000 – the maximum it can claim at a tribunal – back.

Solicitors Regulation Authority takes no action against law firms

A critical response came from the Solicitors Regulation Authority who claimed that Ms McDermott had confused the difference between using all the information from Subject Access Requests with what was relevant to the case at the tribunal. The letter suggested that she should have highlighted more information from the requests if she thought the tribunal was not looking at the issue – citing the ruling from the judge.

The letter from the SRA making this point, dated 30 September 2021, cites from an earlier Tribunal ruling – following the strike-out hearing in July 2020. This was fully one year before the full hearing, where further directly relevant evidence came to light, as noted by Mr Arnold, including the correspondence in which the governing body admitted to nervousness about the timing of her dismissal.

DLA Piper wipes metadata and says it was a mistake

On another matter, as reported earlier, metadata was wiped from a piece of evidence in the case while in possession of DLA Piper, representing Sellafield, shielding information on authorship and time of creation of the document. The metadata was released to the claimant upon request.

The matter was referred to the Solicitors Regulation Authority, which decided in September to take no action. It accepted that this was a genuine mistake by DLA Piper, although its own investigation was inconclusive.

Pinsent Masons, for the Nuclear Decommissioning Authority, did not respond to a request for a statement or interview.

A spokesman for DLA Piper said: ‘As a matter of course, DLA Piper does not comment on client matters. We refute allegations of wrongdoing on the firm’s part. The employment tribunal’s decision is open to the public and we would refer you to this for details of the case and the outcome.’ The Solicitors Regulation Authority did not respond to a request for an interview or statement.

A tainted and improper appointment by Nicky Morgan

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Nicky Morgan : education Secretary who recommended his appointment as preferred candidate
David Isaac: Chairing a fractured organisation with staff and management now at loggerheads.

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On the day  of the Hillsborough  disaster verdict Nicky Morgan,  education secretary  with a sideshow job as women and equalities minister, slipped out that she had appointed a new chair of the Equality and Human Rights Commission.

On the scale of wrong decision making this probably trumps her plan to force all schools to become academies,describe budget cuts as a consultation exercise and avoiding live TV coverage of her remarks on child sex abuse  at a conference in her Loughborough constituency last year. I will explain why.

The appointment of David Isaac, a millionaire lawyer and equity partner at the global law firm, Pinsent Masons, has been highly controversial.

The two chairs of the Joint Committee of Human Rights and the Women and Equalities Committee –  Labour’s Harriet Harman and the Conservative’s Maria Miller – were unable to confirm the appointment because of perceived conflict of interest. Both are highly experienced ex  ministers and both took top legal advice before they objected.

The most damning evidence  against this appointment comes from another highly distinguished lawyer, Michael Carpenter, the Speakers Counsel. He was asked by both chairs as to whether the appointment met the strict criteria of what are known as the Nolan  Principles ( named after Lord Nolan, the first chair of the Committee on Standards in Public Life). These lay down strict guidelines of selflessness,integrity, objectivity,accountability,openness, honesty and leadership. They were brought in after the aftermath of the corrupt ” cash for questions ” scandal and apply to every public appointment.

Mr Isaac’s appointment fails to meet two of these standards – selflessness and integrity.

As Mr Carpenter highlights Mr Isaac  failed to meet the selflessness standard – because holders of public office should act solely in terms of the public interest. (His emphasis added) . He failed to meet the  integrity standard  because holders of public office must declare and resolve any interests and relationships. (His emphasis added).

Mr Carpenter concluded that because Mr Isaac both remained as an equity partner with responsibility for the development of the law firm which had many government contracts and because he was also a practising lawyer with a duty of confidentiality to his clients – some of which could be investigated by the Commission- that he would not fulfil the Nolan principles. Mr Isaac will be earning ten times his salary as an equity partner with Pinsent Masons  than his salary as commission chair.

He also concluded that a promise of keeping Chinese walls in his legal work by Mr Isaac would not work in this case.

He concluded: “It is difficult to predict where the overlap between these two bodies may result in an actual, potential or perceived conflict of interest. With the best will in the world, Mr Isaac may well not be aware of a problem until it is published elsewhere – at that point, a “Chinese Wall” will be ineffective and too late.”

Now in her rush to  appoint Isaac  Nicky Morgan  decided to ignore this advice. Her reasoning is perverse. She actually argues in a letter that having a conflict of interest in public life is a good thing.

She wrote: “What is important is that there is transparency around these interests and that appropriate action is taken to deal with any potential conflicts. Mr Isaac’s CV refers clearly to these interests and, given his openness and assurances to deal with any actual or perceived conflicts of interest, I feel that is to be welcomed rather than a cause for concern. “

How wrong can you get.. You can’t trade off one Nolan Principle against another. It’s illogical and plainly improper.

Frankly her decision could well be the start of slippery slope where people ( not Mr Isaac in this case) with dodgy private connections get access to public jobs.

Mr Isaac has delayed accepting the job until he has further talks with Commission. Very wise.

If  he accepts both he and the Commission will be tainted. And among his  legal peers he will be regarded as the first public appointment that compromised the Nolan Principles.

And if there is ever any breach of any equality or gender law in Pinsent Masons he will find himself at the centre of  a  storm.

Nicky Morgan has been extremely stupid . I hope it comes back to haunt her political career for the rest of her life.

I have also written about this in Tribune magazine.

 

Top lawyer faces storm over ” perceived conflict of interest” in government job

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David Isaac Pinsent Masons

David Isaac: Controversy over his planned appointment to chair the Equality and Human rights Commission

Nicky Morgan education secretary Wikipedia

Nicky Morgan : education Secretary who recommended his appointment as preferred candidate

 

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A row will break out when Parliament returns over the government’s choice for the new chair of Equality and Human Rights Commission.

The Joint Committee on Human Rights and the Women and Equalities Committee have delayed approving the government preferred candidate, David Isaac, a lawyer earning over £500,000 a year because of a “ perceived conflict of interest “ between his new job and his  firm’s financial interests.

The chairs of both committee, both experienced ex ministers, Harriet Harman and Maria Miller, have decided to summon Nicky Morgan, the education secretary who has responsibility for equalities; Sir David Normington, Commissioner for Public Appointments and Sue Gray,Director-General, Propriety and Ethics Team at the Cabinet Office, to a hearing as soon as possible after Parliament returns. I have written about this in Tribune magazine..

The row followed the disclosure during a pre- appointment scrutiny hearing  before Easter that Mr Isaac, a partner in lawyers Pinsent Masons, would keep a equity share holding in the firm while being the new chair. The British law firm has global ambitions.

Pinsent Masons has substantial government contracts  in fields covered by the commission and Mr Isaac would stand to get a share of the profits from these contracts. He earns £500,000 a year as an equity partner compared £50,000 as part time chair of the commission.

The committees were promised that there would be “Chinese Walls” created to ensure Mr Isaac would have no say over any new contracts but were not satisfied and asked to see documentation to ensure that this was the case.

The committees then consulted their panel adviser on the matter and got nowhere.

As the letter  from the committee chairs to Nicky Morgan says: “The Committees sought information from the panel assessor who will have considered in detail potential conflicts of interest as part of the process that determined Mr Isaac is an ‘appointable candidate’.

“ However, we were told that under the terms of the Liaison Committee and Cabinet Office guidance such documents could not be released to the Select Committees either in part or in full. As a result, the committees were unable to undertake one of their purposes as set out by the Liaison Committee terms of reference: “scrutiny of the quality of ministerial decision-making”.

A spokesperson for the Government Equalities Office said: “David Isaac has an impressive track record and brings a range of experience both from his work on LGBT issues and human rights and as an experienced lawyer. We believe that as chair of the EHRC he will be a strong and effective advocate for equality and human rights in Britain.

“We are confident there are no actual or perceived conflicts of interest. All possible conflicts were explored during the recruitment process, which was overseen by the Office of the Commissioner of Public Appointments. In addition, as is usual with significant appointments such as these, there will be a clear framework in place to avoid any potential perceived conflicts.”

His biography on Pinsent Masons says :

“David is a partner and head of the Advanced Manufacturing & Technology sector. He specialises in providing clients with strategic advice on major public and private sector UK and global commercial and outsourcing projects.

Independently recognised for his wealth of knowledge and experience, David leads teams of lawyers on major projects for amongst others DWP, the Home Office,  Transport for London and BP plc. He lectures and writes extensively on IT and legal matters. He is Chair of Modern Art Oxford, a Director of the Big Lottery Fund and a Trustee of both the Human Dignity Trust and 14-18 Now.  He was Chair of Stonewall from 2003 to 2012 and a Trustee of The Diana, Princess of Wales Memorial Fund from 2005 until it spent out in 2013.”