Wings Over Scotland

We figured someone had to at least try.

So in the light of this, we’ve sent a letter.

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TO: Judge Susan Walker, President, Employment Tribunal (Scotland)

Dear Madam President,

I read with considerable dismay and alarm your response to a recent complaint from a Mr Ewan Kennedy regarding the conduct of Employment Judge Alexander Kemp in the case of Peggie vs Fife Health Board and Dr. B Upton.

Like Mr Kennedy, my concern is not with the judgment itself, which I am aware is subject to appeal, but with the specific content of the judgment, and in particular the much-publicised presence of a number of entirely fictional quotations from previous cases, which Judge Kemp used to form key aspects of his decision.

The explanation issued by your office in response to Mr Kennedy’s complaint is deeply troubling. It states:

“I am satisfied that Judge Kemp did not use generative AI in drafting the judgment. It is clear from my enquiries that the source of the erroneous quotes from Forstater and Ashers was an exchange of correspondence between Judge Kemp and a judicial colleague.”

His Majesty’s Courts And Tribunal Service can surely not consider “a big boy did it and ran away” to be an adequate response to such a grave matter. While not a legal expert, as far as I am aware it is unprecedented – I am unable to find a single example in recorded history of a judgment containing multiple entirely fabricated citations – and questions therefore arise which urgently require clarification.

(1) Why was Judge Kemp consulting a colleague (who had, presumably, not heard the evidence in the case) at all? What expertise could they bring to bear that he, having read and heard all of the evidence, could not?

(2) Who was this colleague? If the judgment has been significantly affected by someone other than the person whose name it is issued in, how can accountability and transparency and public trust in the judicial system be served by that person remaining anonymous? How are people to discern whether that person may have a conflict of interest, particularly given the ongoing political issues and sensitivities around this case and this topic more generally?

(3) How much of the judgment was the unnamed colleague, not Judge Kemp, actually responsible for or exercising influence over? If they fed him false quotations, what else did they tell him?

(4) Most importantly, how did this anonymous colleague come to produce these fabricated citations? Because clearly it is no more explicable or acceptable for he or she to have invented them than for Judge Kemp to have done so. If you are satisfied that Judge Kemp did not derive them from generative AI, are you equally satisfied that the anonymous colleague did not? If they did not, where did they come from?

It surely cannot be satisfactory for the public to be dismissively told that these highly significant and consequential quotations simply materialised from thin air.

Either (i) they come from cases other than those they were attributed to (which seems unlikely, as the quotes themselves were replaced in the subsequent versions of the judgment, rather than the citations being corrected), or (ii) they were produced by AI, or (iii) they came from an unknown third party and were not checked by Judge Kemp, or (iv) either Judge Kemp or the anonymous colleague invented them themselves.

Since any of the latter three explanations, and in particular (iv), would be extremely serious, it cannot be just left hanging as a possibility, for it would reasonably cast the integrity of Judge Kemp at a minimum into doubt, and even the entire judicial system, should it be seen or believed to be the case that the matter was being whitewashed.

It is also not clear from the response on which grounds the complaint was rejected. Section 6.1 of the complaints policy lays out the following possibilities:

Grounds (a) to (e) and grounds (g) to (l) seem obviously not to apply, leaving only ground (f), which would be consistent with this passage from the response:

“I do not consider that it supports a proposition that making a mistake in a judicial decision, whether an error of law or an error of the kind that has been identified in this judgment, can be – without more – deemed judicial misconduct”.

But the Guide to Judicial Conduct says as follows:

There are three basic principles guiding judicial conduct:

• Judicial independence
• Impartiality
• Integrity

To have used entirely fictitious citations, provided by an unnamed party and not checked by the tribunal judge, in coming to a judgment which was likely to prove controversial no matter what the decision, and in the knowledge that that decision was likely to be subject to intense scrutiny, must surely place any judge’s integrity and impartiality in question, absent a satisfactory explanation of how those fictitious citations came about. “It was a regrettable error” is at once a statement of the obvious, and manifestly inadequate.

As such, then, I respectfully request that your office either:

– provides greater clarity on who Judge Kemp corresponded with, what was said in this correspondence, and what the ultimate source of the fabricated quotations was,

or

– reconsiders its decision as to whether the fabrications amount to judicial misconduct.

I look forward to your response in the fervent hope that it will go some way to restoring public confidence over these events.

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As ever, we’ll let you know if we hear anything.