Supreme Court president Lady Hale has conceded that ruling on judges' employment rights could create 'an appearance of bias' - but promised to deal 'properly' with a district judge's claim against the Ministry of Justice. The court has reserved judgment after two days of hearings in district judge Claire Gilham's appeal of a 2017 Court of Appeal ruling that judges are not 'workers' for the purposes of protection as whistleblowers.
For Gilham, Karon Monagan QC, of Matrix Chambers, told the court on the first day that the 'offer' letter made to Gilham for her district judge appointment, and the terms and conditions associated with the post, had 'all the characteristics of an employment relationship'.
For the Ministry of Justice, Ben Collins QC, of Old Square Chambers, told the court yesterday that the lord chancellor did and does not select individuals to work for him or her. 'Individuals are selected to perform their statutory role irrespective of the position of the lord chancellor,' Collins said. 'Since 2005 the appointments themselves are made by Her Majesty. That's why there's no reference to "contract" as the Court of Appeal noted in the correspondence leading to appointment or in the instrument of appointment. Of course language isn't determinative, but it's an indication, we suggest, that neither party thought they were entering into a contract.'
Collins pointed out that a contract is an agreement between parties. 'This claim was brought against the Ministry of Justice. It was only in the course of oral argument before the Court of Appeal that it was suggested that the contract might in fact be with the lord chancellor. At the very least that demonstrates that this is not a straightforward case of offer and acceptance,' he said.
At the end of the hearing, Lady Hale, who led the five-strong bench hearing the case, thanked both parties for the 'wealth of material...which we will now have to go away and consider'.
Lady Hale said: 'I'm grateful that the respondent [the Ministry of Justice] considers that it is appropriate for judges to be deciding a case about judges because, of course, the appearance of bias could result from just that fact, nothing to do with to whom we owe our judicial duties. But if it's generally accepted that it is appropriate for us to be dealing with this case then that is a good thing. We will endeavour to deal with it as properly as we can.'