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Judge sues Ministry of Justice for race discrimination

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Peter Herbert takes action over recommendation that he receive warning for his remarks on racism within judiciary


A judge is suing the Ministry of Justice for race discrimination after it recommended that a formal warning be made against him for remarks he made last year about racism and the judiciary.

Peter Herbert, chair of the Society of Black Lawyers, is a human rights barrister who sits as a part-time recorder and as a judge in employment and immigration tribunals. He also holds an OBE.

The complaint arose from a speech he made at a rally in Stepney, east London, last April. He was introduced to the Defend Democracy event in Tower Hamlets as a human rights barrister and later referred to himself as a judge.

Herbert commented negatively about the decision to bar the former mayor of Tower Hamlets, Lutfur Rahman, from holding public office for five years and added that racism was present in parts of the judiciary. He said in the speech: “Racism is alive and well and living in Tower Hamlets, in Westminster and, yes, sometimes in the judiciary.”

Herbert said judges needed training in race issues, saying: “They came out with racism, when they didn’t even know what it meant. So don’t let anybody fool you that just because you have a judgment in a court it is somehow sacrosanct.

“It is not … Do not put your faith in a system that is not designed for you. You are not regarded as British. You are not regarded as part of here or now.”

Herbert said he referred to his role as a judge during the speech only in response to previous remarks at the meeting that the judiciary was all white and middle class.

A complaint was later made about his speech to the judicial conduct investigation office, and Lord Justice Underhill was nominated to look into the matter and to consider whether Herbert’s remarks had breached guidelines.

His findings were that Herbert should be issued with a written warning because the judge was straying into politics and implying that the Rahman judgment was tainted by racism. The guide to judicial conduct states that judges should “refrain from any activity, political or otherwise, which could conflict with their judicial office or be seen to compromise their impartiality”.

The case is with the justice secretary, Michael Gove, and the lord chief justice, Lord Thomas, and a final decision is awaited.

Herbert, who is lodging his action for race discrimination and victimisation against the justice ministry in the central London employment tribunal on Monday, said he had decided to take this action before a final decision about whether to issue him with a warning because he believed the investigatory process had been discriminatory.

He added that before lodging the case he had made conciliation attempts with the ministry but had not received a response.

Part of his case to the employment tribunal is that an attempt was made to suspend him from sitting as a judge on 6 November 2015 after the complaint about his speech at the Tower Hamlets rally.

This attempt was abandoned after written representations were made and a meeting about the matter took place at the high court. Herbert gave an undertaking not to make any controversial comments.

There is a three-month time limit after an incident to lodge a case in the tribunal and a one-month period for arbitration with Acas.

He said: “There is a time limit for me to lodge this action in the tribunal as a result of what happened on 6 November. I am alleging that the decision by Lord Justice Underhill to refer the matter for misconduct and his subsequent decision as the nominated judge to recommend a formal warning against me is discriminatory on racial grounds, amounts to victimisation and is fundamentally flawed because it fails to consider the protection offered by the Equality Act 2010.”

Herbert said he was aware of at least two other judges who are bringing cases against the ministry on the grounds of racial discrimination.

“If I receive a written warning as Lord Justice Underhill has recommended that I do, I will be prevented from applying for further judicial office and my reputation will be tarnished,” he said. “I believe that all of this is about control and about an attempt to silence me.”

Several black lawyers and campaigners in the UK and overseas are backing Herbert in the action he is taking against the Ministry of Justice.

Lee Jasper, the chair of the London Race and Criminal Justice Consortium, said: “Institutional racism continues to affect black British people whether as suspects, prosecutors or judges. The recommendation to give Peter Herbert a written warning is an attempt to silence a black judge who has highlighted institutional racism.”

A spokesman for the Judicial Conduct Investigations Office said: “The JCIO investigates the conduct of judicial officeholders under processes laid down by parliament and the outcome is decided jointly by the lord chancellor and lord chief justice.

“Until that point, proceedings remain confidential. If there is a finding against a judicial office holder, it is always published.”

When asked to comment on the allegations that the Rahman decision was racist, the spokesperson said: “We can’t comment on individual judgments made by judges. There was a full public judgment published at the time on the Lutfur Rahman case”


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