Ministry of Injustice?: Chair of the Society of Black Lawyers sues the Ministry of Justice for racial discrimination

October 4, 2019

3 min read

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What's going on here?

Peter Herbert, the chair of the Society of Black Lawyers, is suing the Ministry of Justice for racial discrimination. This raises long-standing concerns about the judiciary’s composition and will potentially trigger more substantive discourse on diversity in the legal profession.

What does this mean?

Peter Herbert is the chair of the Society of Black Lawyers and also sits as a crown court recorder, as well as an immigration judge.

In November 2015, the Ministry of Justice recommended that a formal warning be made against him, while he was also asked to refrain from sitting as a judge. The reason that triggered the Ministry’s stance was a speech he gave in 2015, where he was found to be straying into politics. This was because he implied that the Electoral Commission’s decision to forbid the former mayor of Tower Hamlets, Lutfur Rahman, from holding public office for five years, was motivated by racist instincts.

The attempt to prevent him from sitting as a judge was abandoned, but now, Herbert is suing the Ministry for race discrimination. In his skeleton argument at a preliminary hearing, Herbert, who represented himself, told the tribunal that race discrimination was “a significant problem” in the judiciary. He stated that there is a clear disparity in appointing non-white judges, especially in the higher levels of the judiciary. Due to the fact that the senior judiciary come largely from one single social strata of society, Herbert argued that there is no real understanding of the Black, Asian and minority ethnic (BAME) community. Subsequently, that is why racism, be it direct or indirect, is still prevalent.

What's the big picture effect?

Whether or not Herbert was racially discriminated against will be ruled on in a later tribunal, provided the judges of the preliminary hearing decide there should be one. Independently of the result, though, Herbert’s decision to sue the Ministry definitely opens up the debate concerning diversity in the legal profession; not just in the judiciary, but also regarding solicitors and barristers.

To understand the scale of the problem, we should bear in mind that black or minority ethnic judges make up fewer than 5% of high court judges and only 7% of all court judges in England and Wales. This is compared to the 14% BME proportion of the wider UK population.

There have been state-led efforts to resolve this lack of diversity. The first of those attempts is traced back to 1991, when the Ethnic Minorities Advisory Committee of the Judicial Studies Board was established in order to carry out ethnic awareness and diversity training to members of the judiciary. This effort was further consolidated in the Constitutional Reform Act 2005, which aimed at the protection of the rule of law, through the safeguarding of judicial independence, which in turn required a diverse judiciary. As such, the statutory Judicial Appointments Commission was instituted, which was overseen by the Judicial Diversity Taskforce. The Commission consists of 15 members, including 5 lay men, in order to appoint judges solely on merit, without secret soundings, bearing in mind the pressing need to encourage diversity. 

In 2013, the Crime & Courts Act was passed, which imposed a new statutory duty on the Lord Chancellor and the Lord Chief Justice to encourage judicial diversity and introduced the so-called “tipping point”. This tipping point provision allows selection panels, which consider two candidates of equal merit, to choose the one from the less well represented background. 

Such provisions inevitably trigger various debates on the merits of affirmative action. The above-mentioned statutory obligations might be exclusive to the judiciary, yet the issues they try to resolve are omnipresent in the legal profession. Similar solutions are being proposed, as well as implemented, for the admission processes of law firms and chambers too. Such methods remain controversial, as critics argue that quotas become a box-ticking exercise and can be demeaning to beneficiaries, whom others may regard as chosen because of their background rather than their skills. Their results remain to be seen.

Report written by Vasiliki Poula

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