Dear supporters

The 42-day appeal deadline passed last Tuesday, and my solicitor Cathy has managed to extract confirmation from Government Legal Services that FCDO decided not to appeal the outcome of my case.

It is over.

This means I can now tell you a little more about the outcome, and what it means.

I didn’t understand the judgment when it came through (you can read it through a link from here, if interested): I couldn’t tell how good or how bad it was. I needed Gavin, my barrister, on the call with my legal team immediately after, to explain to me. I wrote down his words: "These really are big findings – you've established new caselaw. You have held them to account in a big way."

There are some problematic issues with the judgment, and it’s not a straightforward win – I didn’t win on everything. I lost on my second disclosure (I made two) because I failed to convince the Tribunal of the truth of why I made that disclosure. I can live with this because I now know it would have been protected if they had accepted the reasons I gave them – and these reasons were true. Because of losing on this, I lost on automatic unfair dismissal. This is where it gets complicated. The principal reason for my dismissal was that my security clearance had been withdrawn, and I won on the argument that withdrawing my security clearance was unlawful – but it was not unlawful to sack me anyway because there are different tests for detriment (security clearance withdrawal, where material influence is sufficient) and for dismissal (for which the threshold of causation is principal reason). This is a real issue in the law: the causation test for detriment should apply to dismissal too – as it does in discrimination law.

But I won on ordinary unfair dismissal. And I achieved my two actual objectives: I (by which I mean my legal team) have established that civil servants can disclose information directly to the media in the public interest, and I/they have established that security clearance procedures have to account for this. And we achieved this in the face of some hefty legal obstacles thrown by government (rule 94 on national security and parliamentary privilege).

The effect of this judgment should be serious in the civil service, if they take the law seriously. The approach that 'leaking' is anathema is wrong. The boundaries between legitimate and illegitimate challenge need to be explained, and policed. I want government to recognise that the Public Interest Disclosure Act (PIDA) does in fact, as I have proved, apply to the civil service. I want them to update their policies, rules and procedures to bring them into line with PIDA and the findings in my case, and I want them to amend the security vetting framework to take account of PIDA.

I also want government to implement the Law Commission proposal that civil servants should be able to go to a statutory commissioner to investigate reports of wrongdoing. Without any independent commissioner to assess a concern if the department is implicit or not listening, then the press is the only meaningful option.

I’m now engaging politically on these points. I’m doing this because whistleblowing in the civil service is (a) vital to democracy and (b) not working. Civil servants need better whistleblowing options than I faced.

On a personal level, the win still hasn’t sunk in. I wonder when/if it will. I’ve had a lot of processing to do. In recent weeks I have experienced glimpses of a lightness that I haven’t felt in years, as I lived in the shadow of this, and with the looming judgment. I have had waves of panic at the realisation of how easily the judgment could have gone the other way. And I have been deeply moved by the messages of support that I have received.

All I have done throughout all of this is try to make the best of a really shitty series of situations.

The heroes are my legal team.

I only had the chance to do this because of them.

The law is meant to be for everyone, but I could never have taken on government without huge resources available if it weren’t for their taking on vast amount of work for free. I am humbled by this, and also feel acutely the unfairness of the situation – it’s unfair on them, and it’s unfair on everyone else with just as valid cases as mine, but without this opportunity. The system sucks.

It has meant a lot to me to be able to contribute towards just some of their expenses through all of your incredible support through CrowdJustice. I know I can never thank them enough, but all contributions have helped.

For that: thank you. And if you’d like to thank my lawyers, please do so by sharing the link to this CrowdJustice page. 

Next up: time for a celebration! To draw a bit of a line under all this, and to thank everyone who’s supported me throughout.

Josie

I am too overwhelmed right now to do any more than to copy the full text of our press release.

Too overwhelmed and too full of gratitude.

Josie

Fall of Kabul Whistleblower Wins Employment Tribunal Case Against Government 

“An important win… for civil servants, the public interest, and democracy”

In the first case of its kind, the Employment Tribunal has ruled that under whistleblower protection legislation it can be lawful for a civil servant to share unauthorised information directly with the media: “The tribunal considered that it was reasonable for the Claimant to go to the UK’s public service broadcaster when relevant information and/or allegations had already been put into the public domain … and government ministers were publicly disputing them.”

The judgment in the groundbreaking case against the Foreign, Commonwealth and Development Office (FCDO), received today, confirms that Josie Stewart was subject to unlawful removal of her security clearances and was unfairly dismissed by FCDO after she told BBC Newsnight about terrible failings at the heart of UK government. Her disclosures related to government’s handling of the evacuation from Afghanistan in 2021, and a subsequent denial by the Prime Minister and other very senior ministers and officials.

Upon receiving the judgment, Josie Stewart said “My experience of the FCDO crisis centre in August 2021 reflected the worst of our political system. By calling this out, I lost my career. The outcome of this case doesn’t change any of this, but it has achieved what I set out to achieve: it has established that civil servants have the right not to stay silent when systemic failures put lives at risk, as happened during the Afghan evacuation. I hope that, knowing that their colleagues have this right, senior officials will do more to build accountability in government, and speak truth to power when it is needed. We can’t have a system that says stay silent, no matter what you see, and forces dedicated public servants to choose between their conscience and their career.

I am profoundly grateful to my incredible legal team, who’ve worked pro bono for years because they saw the landmark implications of this case.”

Cathy James OBE, solicitor for Ms Stewart, said “Today, the Employment Tribunal has vindicated my client’s actions and upheld her rights. This is an important win not just for Ms Stewart, but for civil servants, the public interest, and democracy.”

Gavin Millar KC, who represented Ms Stewart in the proceedings, said in submissions that the evidence presented in the proceedings, much of which was not countered by FCDO, showed terrible failings by government.  The concerns raised related to “the endangerment of the safety and lives of extremely vulnerable people in danger of retribution from the Taliban at any moment, and a government communications strategy which concealed how badly the UK government let those people down.”

Josie Stewart’s career as a high-performing civil servant in FCDO was terminated in 2022 when her security clearance was removed and she was dismissed after being accidentally identified as a confidential journalistic source. Ms Stewart subsequently brought Employment Tribunal proceedings against FCDO under the Public Interest Disclosure Act provisions in the Employment Rights Act. The case was without precedent and raised numerous important issues about civil servants’ rights to whistleblower protection under existing law.

In preliminary hearings in 2023, Ms Stewart fought applications made by FCDO first to restrict public access to proceedings and limit her legal team’s access to evidence due to spurious national security claims, and second to strike out parts of her evidence which related to the truthfulness or otherwise of testimony that had been given to Parliament.

We've just heard from the court that the judgment in my whistleblowing case against FCDO will be issued next Tuesday, 18th February.

I will be so grateful for your thoughts and support.

Josie 

Having finished in court on 17 May, we're still waiting to receive the judgment - and will be waiting a while longer.

The tribunal members want to meet again to review and finalise the written judgment and reasons. We're told this is scheduled to happen on 19 December. Then it has to go to a minister to make any redactions that are deemed necessary on national security grounds before it is published. Then we will get it.

So, realistically, it's unlikely to be far off a year between the end of the hearing and receiving the outcome.

On Wednesday afternoon we heard closing arguments in the full hearing of my case, after eight days of evidence and cross-examination (which was brutal). 

Being in the centre of that storm was the most intense and stressful experience, and one which I will be processing for some time to come. But I have now slept, and as I begin to emerge, I wanted to thank everyone who has supported me - by coming to court, by sending wishes, and by supporting my incredible legal team through CrowdJustice. Thank you.

Now begins the (probably lengthy) wait for the judgment.

Best wishes
Josie

Foreign office whistleblower hearing begins - Matrix Chambers (matrixlaw.co.uk) 

UK whistleblower ‘morally compelled’ to speak out on Afghan withdrawal | Civil service | The Guardian 

Failures in Afghanistan evacuation probably cost lives, tribunal hears | The Independent

"No tribunal can judge me to have been wrong in my actions. All they can do is conclude that my actions were outside the protection of the current law, and there’s an important difference." - My article in Prospect magazine, before the final hearing of my case begins this week.

As my incredible probono legal team gears up yet again, I remain deeply grateful for all support to help cover some of their basic costs.

https://www.prospectmagazine.co.uk/politics/65890/why-civil-service-whistleblowers-like-me-deserve-far-more-protection

The countdown is now really on: one month from today, the full hearing of my case will finally begin in the Central London Employment Tribunal. It's scheduled to run from the 2nd to the 20th of May.

I am turning my mind to preparation: assisting my legal team in any way that I can with all they will be doing this month to prepare, and preparing myself.

It's a truly huge amount of work that my team - Gavin Millar KC and Darryl Hutcheon at Matrix Chambers, and Cathy James and Spike Lacey at James and West Law - have taken on. 

I remain so grateful to each of you who has supported them, and me.

Thank you

Josie

The deadline for any appeals to be lodged against the preliminary judgement on the application of parliamentary privilege to my case has now passed. Neither side appealed, so we are now finally headed for the trial. Once I have removed the court-ordered paragraphs from my witness statement, that is (which will pain me).

The full hearing is listed from 2nd to 20th May at the Central London Employment Tribunal. Almost all of it will be in public, thanks to the earlier efforts of my brilliant lawyers, so feel free to come along!

https://www.transparency.org.uk/employment-tribunal-ruling-could-make-parliament-no-go-zone-civil-service-whistleblowers

https://protect-advice.org.uk/parliamentary-privilege-creates-a-barrier-to-civil-service-whistleblowers/

Today we received the court's ruling on Government's application to strike out core aspects of my case, on the grounds of parliamentary privilege. The hearing was public so hopefully the ruling will be published in due course. It raises some really important issues. In the meantime, here's our statement on it: https://jamesandwest.co.uk/government-restricting-whistleblowers/

The full hearing of my case, scheduled for 8-22 September, is not going ahead as planned. 

We finally finished disclosure, and exchanged witness statements a couple of weeks ago.

We now find ourselves needing another preliminary hearing, for case management, on 7 September. Then 20-22 September is being held for a potential preliminary hearing, in public (those two words are important to me!), on issues of Parliamentary Privilege. 

Both sides are expecting a view on these issues from Speaker's Counsel early next week.

My case keeps getting more complicated, but the issues do not become any less important. 

And the amount of work my legal team are putting into all this, unpaid, is extraordinary. I am hugely in their debt. Any/all support I can offer them through this CrowdJustice appeal helps me to feel just a little better about this.

It also really helps me feel less alone, in this long fight. 

Thank you so much

Josie 

It’s been a while since I updated on my case, but things have not been quiet: endless back and forth and wrangling over disclosure has meant a huge amount of work for my lawyers. We were meant to have passed this stage months ago, but we’re having to fight to get the documentary evidence we need. At another preliminary hearing this morning, the judge ordered new dates: finalising further disclosure by 28 July, yet another preliminary hearing on 8 August (in case we still haven’t been given everything), witness statements by 11 August. Not much time at all then before the full hearing is scheduled to begin on 7 September, and we anticipate some important issues still might not have been worked out by then – so this morning there was talk of it all slipping to next year.

I’m finding all this harder than I ever thought possible: the amount of work, the complexity and, most of all, the emotional impact on me, and on my life. My gratitude to my lawyers for what they are doing, unpaid, is profound.

The issues of legal principle that we are continuing to uncover as we go are truly important. Whatever happens, there is going to be much to take from this case and to use: to help public service work better for us all. 

To all of you for your support – thank you.

Josie

Dear All

Thank you for your continued support and interest in my case. Here is a quick update on what has happened since we reached our target. 

I spent today in court listening to arguments in a preliminary hearing on my case. This hearing was listed in order to hear and decide upon Government's Rule 94 (national security proceedings) application. As the hearing was held in private, frustratingly I am not able to share anything that was said. A Guardian reporter whom I met at reception this morning, who had turned up to cover the hearing, was turned away. 

What I can say is that we will receive the judge's decision and reasons on 18 May. Also that I found today intense, emotional, infuriating, and motivating. And that my legal team are truly incredible: it was a privilege to witness them at work. 

Whatever I can raise through CrowdJustice will only ever be a tiny proportion of the true costs of this case. But there are truly important issues at stake, which my lawyers are fighting not only on my behalf. They deserve my and our support. 

Huge thanks again for this. I will keep you updated on any further developments.

Best wishes,

Josie