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.

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:

1. Judges’ notes must be released to all parties.
2. All hearings must be recorded.
3. These records must be made accessible to all parties involved.
4. 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.