Exclusive: Supreme Court ruling opens way for legal action against Michael Gove and Liz Truss for racial discrimination and victimisation

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Liz Truss former Lord Chancellor Pic credit:BBC

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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 link is here.

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.

pete rherbert caseThe 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.

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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 Equality 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.

Untrustworthy Truss: The dishonest cover up that left farmers owed hundreds of millions of pounds

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This week  Environment Secretary Elizabeth Truss chairs a highly publicised  emergency Cabinet committee to save large swathes of the nation from a flooding disaster. I hope she does a better job than supervising payments to  England’s farmers.

Last week her department  and one of its agencies were involved in one of the most callous and dishonest pieces of news management this year.

It has left tens of thousands of farmers without any  money for Christmas and they will be lucky if they are paid by the end of January.

The reason is her department and the Rural Payments Agency have been involved in a monumental mess over  the introduction of a new computer system to pay farmers their annual cash from the European Union.

This money is not small beer. This time last year some £1.3 BILLION was paid out to over 96,000  farmers in England and it helps keep our  food at reasonable prices in the shops.

Last week the National Audit Office revealed that the computer system set up to pay the money didn’t work properly, cost 40 per cent ( at £215m to the taxpayer) more than planned and , as a result,farmers had to revert to using paper applications.

The report even for National Audit Office terms was scathing. it revealed a total mess across Whitehall with quarrelling officials from the Cabinet Office to the Government Digital Service making a pig’s ear of the whole business.

I wrote about it in Tribune. Here is one damning paragraph  in the report:

” The Programme has been set back by numerous changes in leadership. There were four senior responsible owners within the space of a year, each bringing their own style and priorities. Repeated changes were disruptive to the Programme and caused uncertainty and confusion for its staff. The Department failed to prevent… deep rifts in working relationships and inappropriate behaviour at the senior leadership level. ”

Now this body- the Government Digital Service – has just been given an extra £200m by George Osborne, the Chancellor, so it can digitalise driving licences and passports.  If their handling of farmers money is anything to go by, you will find you won’t be able to get a driving licence or passport by the next General Election.

You might wonder why you have not heard about this mess.  A copy of the damning NAO report was sent to every national newspaper but their reporters deemed it too boring to publish. The situation was condemned by Meg Hillier, Labour chair of the Commons Public Accounts Committee, but it fell on deaf Parliamentary lobby ears.

But worse than this  the Department of Environment, Food and Rural Affairs deliberately misled the public and the media about this state of affairs.

Last year when the first farmers received their cash under the old system, Elizabeth Truss couldn’t wait to boast, in a run up to the election, how successful the government had been in getting the money to farmers. You can read about it here.

This year this completely misleading statement was put out and Elizabeth Truss was nowhere to be seen. It boasted of  33,000 farmers receiving the cash. Last year it was 96,000. In other words it had fallen by 65 per cent – an appalling state of affairs.

To my mind the whole saga shows we are governed by a Metropolitan elite – with no press interest in the plight of anyone outside London and complete disdain for rural issues. That is why obviously Elizabeth Truss thought she could get away with no one knowing anything about this mess. And she has succeeded.

There is a great opportunity for Labour and the Liberal Democrats to take this issue up – it chimes with the parties’ interests in backing grass roots politics away from Westminster.

There is also a sting in the tale – do you know the European Union can fine the UK for not paying the money promptly. A similar problem some years ago meant the department was fined over £600m.  So due to ministers’ incompetence some of your taxes – will go to pay millions of pounds of EU fines. You couldn’t make this up.