Judicial head “guilty of gross negligence and deliberate recklessness”

• BARNIE CHOUDHURY
• 21 April, 2023

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By: BARNIE CHOUDHURY

THE body which appoints judges is “avoiding public scrutiny” and one of its heads is “guilty of gross negligence and deliberate recklessness”, a senior south Asian judge has told a tribunal.

Abbas Mithani KC, a designated civil judge for the West Midlands and Warwickshire, is asking the General Regulatory Chamber to rule whether the Judicial Appointments Commission [JAC] and Information Commissioner’s Office [ICO] were wrong to deny him full disclosure to three freedom of information requests he made.

Judge Mithani wanted to know how the JAC decided how and who it appointed to discover whether there was racial discrimination and gender bias in the process.

The JAC used exemptions under the act, and the ICO upheld its decisions, even though there was an error in the decision-making process, the panel heard.

“Their reliance on those exemptions are flawed and incorrect,” said Mithani in his opening statement to the online tribunal.

“It is a central part of my case that the reason that the JAC is refusing to provide answers to the remaining questions is that they wish to avoid public scrutiny of its affairs.”

He told the three-member panel that the ICO relied on the evidence of the JAC’s head of corporate services, Ian Thomson.

“I intend to demonstrate to the tribunal that the evidence of Mr Thomson is for the most part unreliable and several other aspects deliberately misleading.

“I’m not going to say at this stage whether there are aspects of his evidence which are simply untruthful.

“It’s a substantial part of my case that he has at the very least been guilty of gross negligence and deliberate recklessness and something considerably more.”

Stifling scrutiny

The judge said it was “characteristic of the JAC and other government departments” to stifle public scrutiny by attacking the character of the person bringing a case against them.

“I can say to the tribunal emphatically and unequivocally that I do this much for myself as for all the different people that have been seriously short-changed by the Judicial Appointments Commission in the appointments process,” Mithani continued.

“Why are these freedom of information requests important?

“Because they will demonstrate that the JAC has been acting as if none of the regulations which govern it apply to it.”

One of the exemptions used by the JAC was section 36 of the act, which allows public bodies to refuse information on the grounds that it would “prejudice the effective conduct of public affairs”.

Mithani argued that to use that get-out clause a “qualified person” must give their “reasonable opinion”.

“What is absolutely essential was that there must have been in place at the time when the freedom of information request was made of a person at the JAC being qualified by being properly authorised by a minister of state,” he told the hearing.

“There was no such authorisation. There never has been any authorisation at any time in the history of the JAC until the 10^th of October 2022.

“Several people made freedom of information requests, including me, and the indication given to them was ‘we are relying on this exemption because we have authorisation.’

“They said that to me as well, but they did not expect me to take this matter all the way to the tribunal.”

The panel heard that the ICO and the JAC contended that their decision making was correct, but this was “manifestly untrue”.

Mithani said he only discovered that the JAC had no authority when he asked for proof.

Serious allegations

Counsel for the JAC, Natasha Simonsen, described the allegations as serious.

“These allegations have been and are a source of some considerable distress to the individuals concerned, particularly to Mr Thomson and other staff of the Judicial Appointments Commission.

“I need to be clear that any allegations of bad faith, impropriety, deliberate untruths, recklessness or negligence are very strongly refuted by the JAC, and by all of the individuals concerned.

“Further, there is no basis for making that submission.

“For the most part, the allegations of bad faith and impropriety have been extraneous to the matters in dispute, and, given that, it would not have been possible or appropriate for the JAC to file evidence seeking to refute them.

“I will, in due course, be inviting the tribunal to disregard these serious allegations in their entirety.”

In her opening statement the barrister also explained to the tribunal the case was not about the lack of diversity in the judiciary or how the JAC appointed judges or whether there was discrimination in the process.

Narrow focus

The focus of the hearing was narrow, she said.

“It is about eight very specific and discrete requests for information under the Freedom of Information Act, and in particular whether the Information Commissioner was correct to hold that that information was exempt from disclosure.

“I need also to emphasise, because Mr Mithani has suggested that the JAC is motivated by a desire to avoid scrutiny or transparency, that on the contrary, at evert stage, the JAC’s overriding concern has been to ensure that any disclosures are properly and lawfully made.”

Simonsen admitted to the hearing that the JAC had made a mistake in using the section 36 exemption.

“The tribunal will have seen from my skeleton argument that the JAC accepts that it erred in relying on section 36 at the time of its response to Mr Mithani, because at that time it could not evidence that there was an appropriate authorisation.

“We accept that was an error.

“Mr Thomson’s evidence is that this was an error made honestly and in good faith.

“However, even if that exemption was not correctly invoked at that time, the JAC respectfully submits that the exemption is now properly engaged.”

Mithani argued that once the JAC realised it had no authorisation, it should have informed the ICO.

Legal qualifications

It emerged during questioning of the JAC head of corporate services that he has no legal qualifications.

Thomson told the court he did not believe the JAC needed them to deal with complaints.

He said he had been on three civil service courses, organised by his employer, and some online seminars to learn about implementing the Freedom of Information Act.

Mithani wanted to explore why candidates were being stopped from progressing by those with no legal experience.

But, Judge Lynn Griffin, who is chairing the panel, would not allow this.

She said, “This tribunal is not here to make an inquiry into wide ranging matters, and I’m looking at the terms of the [FOI] request that deals with complaints.

“Under the terms of that request you made, the information you’re seeking, does not seem to relate to any part of those complaints.

“There’s no question about the qualifications of those taking decisions on the complaints.”

The Information Commissioner’s Office is not represented at this tribunal.

The hearing continues.