Judge sues lord chief justice and Truss over ‘discrimination’

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Jul 25, 2017
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Peter Herbert claims he was inappropriately reprimanded over a speech he gave in support of Lutfur Rahman, the disgraced former mayor of Tower Hamlets

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A black judge is suing the lord chief justice and a former lord chancellor for race discrimination and victimisation in a landmark case before the employment tribunal, it has emerged today.

Peter Herbert, a crown court recorder, claims to be the first judge ever to sue leading fellow judges by name. Herbert is bringing the action against Lord Thomas of Cwmgiedd, the lord chief justice, who is the most senior judge in England and Wales, Liz Truss, the former lord chancellor, and Mrs Justice Laing, the High Court judge who heard a disciplinary case against him.

The junior judge alleges that in reprimanding him over public comments he made about another judge, all three discriminated against him and victimised him on the grounds of race. Herbert also makes a claim of racially-motivated harassment.

The judge is also suing the Ministry of Justice in a long-running case that revolves around comments he made in defence of Lutfur Rahman, the disgraced former mayor of Tower Hamlets in east London. Mr Herbert gave a speech at a rally for Rahman in April 2015 in which he criticised Richard Mawrey, QC, the deputy High Court judge who disqualified Mr Rahman from standing for public office. The former mayor was found guilty of electoral fraud.

At a disciplinary hearing after his speech, Herbert, who is a practising barrister and chairman of the Society of Black Lawyers, was criticised for implying to the crowd that the judge’s decision was rooted in a belief that ethnic minorities were “not regarded as British”. A four-strong panel of the judicial conduct investigations office found that Herbert had inappropriately told the rally that those with ethnic minority backgrounds “should not place their faith in a justice system that had not been designed for them” and that they should “take direct action”.

The disciplinary panel stopped short of calling for Herbert to be given a full reprimand and recommended that he be given “formal advice” instead. That lower-level action was formally handed down last April by Lord Thomas and Truss.

Herbert was particularly angered by findings by the disciplinary panel that as a “BME judge he ought to have known better” and that the effect of his comments in Tower Hamlets would be “exacerbated by the fact that the accusation is made by a prominent BME human rights lawyer, to whom that audience might well look for informed comment and guidance”. Herbert is now taking his claim to the employment tribunal and he told The Times that he expected the case to be heard in November. 

He has another tribunal case pending against the Ministry of Justice, in which he alleges that his temporary suspension from sitting as a judge in the wake of his comments in defence of Rahman also amounted to discrimination. That earlier claim has been stayed until November as the Ministry of Justice is arguing that Herbert’s claims are invalid as they breach the concept of judicial immunity.

Herbert said that his treatment by the disciplinary panel and the senior judges “makes it clear there is a different standard to be applied to a prominent BME lawyer”. He went on to claim that “the lord chief justice and the lord chancellor are willing to make disciplinary findings against BME judges in a way that they would not if we were white. I do not expect to be treated above the law that applies to other judges but I do expect to be treated equally”.

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