The judge to whom the rules do not apply?

On March 13 2024 I made a complaint to the Judicial Conduct Investigations Office about Master McCloud, a full-time judge in the High Court who has been engaging publicly and inappropriately in debates on sex and gender, in ways that are not in line with judicial conduct standards.

I am publishing the complaint in full here, with a summary below.

On 22 January 2024, Dr McCloud ( “Judge in the High Court”) posted a long comment on Linkedin about my case.

This is a clear breach of The Guide to Judicial Conduct which says:

Judicial office holders should not use their judicial title on social media and it is most unlikely to be appropriate to disclose the fact of their judicial role on any platform or account with unrestricted public access.

Dr McCloud’s Linkedin profile was not set to private (and is still not set to private) so all posts and comments could be seen by any member of the public with a Linked-in account.

The Social Media Guidance for the Judiciary says:

You will be able to identify high-risk topics. It is obvious, for example, that judges and magistrates should avoid participation in online debates about the judiciary, legal system or other topics of political controversy.

Dr McCloud not only posts on the highly political topic of sex and gender and the law but also demonstrates hostility towards people with gender critical beliefs, comparing them to racists, suggesting they should simply keep quiet about their beliefs / be made to keep quiet about their beliefs, and accusing them of “intellectual bankruptcy”.

Master McCloud also gets the law badly wrong:

Suggesting that a protected belief is not an “actual protected characteristic”
Suggesting that manifestations of a belief are never protected if “people with protected characteristics feel harassed”
Falsely contrasting a belief vs a protected characteristic: “a belief is something you can keep to yourself, a characteristic is not”.

This raises serious concerns about Dr McCloud’s ability to understand and to fairly and accurately state the law in this area and are apt to undermine confidence in Dr McCloud’s ability to act fairly on anything to do with sex and gender.

I highlighted a previous post by Dr McCloud which was also inappropriate and demonstrated hostility.

Leaked resignation letter to the Times

Dr McCloud appears to have resigned suddenly in late February giving less than 6 weeks’ notice. The resignation letter was leaked to The Times.

In my complaint I said the timing of the resignation suggests this might have been in response to complaints about the post on 22 January 2024. It appears likely that Dr McCloud leaked the letter to the Times and effectively used it as a press release to further publicise Dr McCloud’s views on this issue.

In the quoted extracts Dr McCloud seems to blame the need to resign on people with gender critical beliefs. Dr McCloud claims to have “become a target”, that “it has been open season on me and others” and even draws comparisons with Rosa Parks, claiming that “for me I am now political every time I choose where to pee. Less prosaically, the judiciary by continuing to let me be a judge is now at risk of being political.”

Plainly it is Dr McCloud’s conduct on social media and in the press that risks politicising the judiciary, and it is nothing to do with toilets.

This engagement with the media is a clear further breach of the guidance to judges. The Guide to Judicial Conduct says:

“In general, for good reason, judicial office holders do not talk to the media... it is important to maintain the separation of powers and independence and not commenton matters of controversy or those that are for Parliament or Government.”

"...judicial office holders must always be circumspect before accepting any invitation, or taking any step, to engage in public debate. Consultation with their relevant leadership judge before doing so will almost always be desirable.

Any judicial office holder who decides to participate in public debate should be careful to ensure that the occasion does not create a public perception of partiality towards a particular organisation (including a set of chambers or firm of solicitors), group or cause or to a lack of even handedness."

In my complaint I said the source of the leak to the Times should be fully investigated, starting with asking Dr McCloud to confirm or deny being the source. If it was not leaked by Dr McCloud this would be a very serious breach of Dr McCloud’s data by someone else, and one which should be reported to the ICO.

Further comments to The Times and on Linkedin

A week after the original report in the Times, Dr McCloud made further comments to The Times in a follow-up article.

Judges are supposed to obtain permission to speak to the media. Such limitations on a judge’s free speech are expressly permitted under the Human Rights Act 1998 “for the purpose of maintaining the authority and impartiality of the judiciary”.

Dr McCloud does not seem to accept the rules that other judges are held to.

Becoming more vocal

My complaint also highlighted further posts on Linkedin, from which it appears that Dr McCloud does not in fact propose to retire completely but rather intends to keep sitting in retirement – “after a vacation”.

Further postings on Linked-in suggest that Dr McCloud has no intention of refraining from commenting on matters of public controversy or indeed from displaying hostility and bias towards people with gender critical beliefs.

My complaint (which I updated with additions) included several posts that show that Dr McCloud has abandoned any attempt at maintaining impartiality and is keen to take a more campaigning role. The term “gender-critical extremism” has now become something of a theme for Dr McCloud.

I do not see how Dr McCloud can continue to sit as a judge while making public comments like these.

In my complaint I asked that the JCIO do not exercise its discretion to cease consideration of cases where a judge leaves office. I said that it cannot be right that any outstanding complaints should be dismissed and that Dr McCloud can then start again as a fee-paid (part-time) judge with a clean slate, especially given the the lack of contrition or remorse demonstrated and the repeated flouting of the rules which clearly raise issues as to Dr McCloud’s willingness to comply with the obligations placed on judges, and suitability to be a judge at all.

Since I submitted my complaint:

Master McCloud continues to be serving judge.
There has been no published disciplinary statement about Master McCloud.
On 27 March McCloud launched a crowdfund together with the campaigning organisation “Good Law Project” to fund an intervention in a case. The Guardian reported “The UK’s first transgender judge is seeking leave to join the litigation in a crucial supreme court case that could significantly affect legal protections for transgender women”
McCloud continues to post campaigning messages and accusations about "gender critical extremism" with disclaimers such as "non-judical statement under ECHR Art 10"