The lord chief justice has personally intervened in the case of a judge who is suing the government for racial discrimination.
The Judicial Conduct Investigations Office has recommended that Peter Herbert, a human rights barrister and judge in employment and immigration tribunals, receive a written warning for remarks he made last year about racism in the judiciary.
The final decision about whether or not to issue a written warning rests with the justice secretary, Michael Gove, and the lord chief justice, Lord Thomas. But instead of rubber stamping the JCIO’s recommendation, Thomas has written to him saying that he is concerned that the representations raise points that have not been fully considered. Thomas added that a disciplinary panel should be set up to further investigate these points.
Herbert, who is also chair of the Society of Black Lawyers, said: “I welcome the opportunity to have a disciplinary panel consider the Equality Act and Human Rights Act as the Ministry of Justice failed to do so, but I remain seriously concerned about the significant delay in this process.
“I am aware of several other cases involving black and minority ethnic judges, all of whom complain of the Judicial Conduct Investigations Office refusing to deal with race issues other than to deny their existence.
“Almost 25 years after I commenced training judges on race issues as a member of the Judicial Studies Board it seems that those lessons have been forgotten,” he said.
The initial complaint against Herbert 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.”
Today, Herbert says judges need training in race issues. He said he had only referred to his role as a judge during the speech in response to previous remarks at the meeting that the judiciary was all white and middle class.
A complaint was later made to the JCIO and Lord Justice Underhill was nominated to look into the matter and consider whether Herbert’s remarks had breached judicial guidelines. He recommended that Herbert be issued with a written warning for 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”.
Herbert says the recommendation to give him a written warning 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 and the Human Rights Act. He lodged the claim in the employment tribunal after making conciliation attempts with the MoJ, which he said he received no response to.
A spokesman for the JCIO said:“The JCIO can confirm it is investigating a conduct issue relating to Peter Herbert. It never comments on investigations until they have been concluded. If there is a finding against any judicial office holder by the lord chancellor and the lord chief justice, this is published on the JCIO website.”
