UPDATE: At a Press Gallery lunch in Parliament last week I raised the issue of the Supreme Court ruling and the potential case to be brought by three judges with David Lidington, the current Lord Chancellor and Justice Secretary.
He did not want to comment about the Supreme Court judgement or any pending legal action but he vigorously defended any of the judges from institutional racism. He said it would be against their ” oath of office” and believed all of them would be fair minded and ” in no way racist.” He did admit that the judiciary did not have enough judges from black and ethnic minorities and promised a ” mentoring programme” so more top barristers would come forward and become judges.
Michael Gove and Liz Truss, two former Lord Chancellors, the former lord chief justice, Lord Thomas, six High Court judges and heads of the tribunal services are facing lthe prospect of legal action for victimisation and racial discrimination by three fellow black and Asian judges and a black former tribunal member following a ground breaking ruling by the Supreme Court. An article appears in this week’s Tribune magazine.
The virtually unreported Supreme Court judgement last week, which involved interpreting an EU equality treatment directive, is seen by campaigners as removing immunity claimed by the Ministry of Justice, the Metropolitan Police, magistrates and tribunal bodies, barristers, solicitors, doctors and dentists disciplinary bodies, from the Equality Act when handling misconduct inquiries.
It will also apply to disciplinary hearings involving sexual and gender discrimination and disabled people.
The original case was brought by a disabled black woman police officer, known as Ms P against the Metropolitan Police. She claimed discrimination because of her disability during a disciplinary and misconduct hearing. She had previously been assaulted and was then involved in an incident which led to her arrest. She claimed post traumatic distress syndrome following the assault had led her to act in this way. The panel rejected her claim and she was dismissed immediately. She appealed to an employment tribunal saying she had been subject to disability discrimination but it struck out her case because it ruled that the panel was exempt from the Equality Act.
Her case was turned down by the lower courts but they have now been overruled by the Supreme Court. At the hearing her case was joined by four black and ethnic minority organisations, Operation Black Vote, Black Activists Rising Against the Cuts (BARAC UK) the Society of Black Lawyers, and The Association of Muslim Lawyers who asked for a ruling on civil law in this case.
The ruling has had an immediate impact on four other cases involving racial discrimination and victimisation brought by three judges and a tribunal member that had been stayed at employment tribunals because the Ministry of Justice said it had immunity under the Equality Act.
These involve cases bought by Peter Herbert, a recorder and part time immigration and employment judge and chair of the Society of Black Lawyers; Daniel Bekwe,of African descent, a former member of Croydon Employment tribunal; a district judge and an immigration judge, who plan to go public at a later date.
Recorder Peter Herbert who is also chair of the Society of Black Lawyers. Pic Credit: Operation Black Vote
Mr Herbert said: “We met last night and decided that our solicitor will write to the Employment Tribunal asking for the stay to be lifted and the hearing re-opened following the supreme court’s judgement. We hope to get a hearing in December.”
Dianne Abbott, the shadow home secretary, is planning to raise questions with ministers on the judgement.
Groups were jubilant following the ruling. BARAC said: “Today’s important ruling we believe, means that Judges, Magistrates, lay tribunal members, barristers, solicitors, doctors, dentists, nurses and other professionals and office holders cannot be prevented from enjoying the full protection of the Equality Act 2010. We are writing to the MoJ and the Government to ask them to clarify all those professions where this ruling will apply.”
Lord Herman Ouseley, former Chair of the Commission for Racial Equality and the Chair of Kick It Out stated,
“There should be no hiding place in the form of judicial immunity for decision
making bodies, decision makers and their processes enabling institutions to lawfully
discriminate and not have these decisions challenged by those persons affected.
Too many attempts have already been made by the state to restrict access to and
therefore deny justice for individuals rightfully seeking to invoke the provisions of the Equality Act 2010. No more denial of Justice”
Lee Jasper, former adviser to the Mayor of London on Equality, Chair of
London Criminal Justice Consortium stated,
“The filing of an amicus brief indicates a renewed determination by British black
organisations to embark on a focused legal strategy to achieve civil rights and
equality. The notion of legal immunity from the Equalities Act 2010 will now be
the subject of intense legal examination. The black WPC at the centre of this case has been to hell at back at the hands of the Metropolitan Police, suffering the
triple oppressions of race, gender and disability.”
“ Those involved in the suspension of Recorder Peter Herbert can now be exposed
as exercising institutional white privilege, as they had been given cover by the
Government relying on the misguided concept of judicial immunity to give licence to institutional racism. “
The decision by the Supreme Court will have enormous ramifications for disciplinary panels. But there is also extraordinary irony as well. This case could be appealed by the Metropolitan Police or the Ministry of Justice to the European Court of Justice.
But given the entire stance being taken at the Brexit negotiations where the ECJ is a red line for ministers – it is the one thing that the government can’t do.
Meanwhile the Equality and Human Rights Commission has indicated it wants to make sure the government doesn’t sneakily change the law once we have left the EU.
EHRC Chief Executive Rebecca Hilsenrath said:”This case goes to highlight the importance of EU law in protecting fundamental rights. This is why we are pressing for amendments to the Withdrawal Bill to protect our rights under the Brexit process.”
A summary of the Supreme Court judgement is here.