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

CROSS POSTED ON BYLINE.COM

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.

Supreme Court upholds right of classical pianist to tell compelling story of child sex abuse

An attempt to ban a book by a classical pianist James Rhodes where he revealed how he overcome his childhood trauma of  sexual abuse through music has been comprehensively overturned by the Supreme Court.

The findings and the judgement are reported in detail on the excellent Inforrm blog site here

The decision overturns what will be seen as a rogue judgement by the Court of Appeal which allowed his former wife to ban publication of the book because it could cause distress and damage to the author’s son. This extraordinary judgement has been report on this site earlier.

Dan Tench, of the law firm, Olswang, writes on the Inforrm.blog :

“The Supreme Court handed down today its judgment in OPO v MLA ([2015] UKSC 32), the case in which the Court of Appeal had – extraordinarily – granted an injunction to prevent the publication of a book solely on the ground that it might cause psychological harm to the author’s son. In a compelling and comprehensive judgment, the Supreme Court reversed the decision of the Court of Appeal and discharged the injunction.

The Court clarified the tort of intentionally inflicting mental suffering, gave a powerful reminder of the importance of freedom of expression, provided important guidance on the form of injunctive relief and abolished imputations of an intention by operation of a rule of law.”

He concludes:

” The judgement is also notable for including substantial extracts from the book, perhaps the most startling and vivid prose to appear in a Supreme Court judgement.  This material gives a strong insight into the power of the book and it is plain that the judges held it in high regard (although that was no part of their reasoning).  The Court recognised that the book used “brutal language” and “dark descriptions” and confirmed previous authority that the “right to convey information carries with it a right to choose the language in which it is expressed”.

This is a powerful, authoritative and humane decision from a Supreme Court at the top of its game.  Like all the best judgements, when one has finished reading it one concludes that the law could be only this, a welcome answer to the difficulties to which the decision from the Court of Appeal gave rise.”

I thoroughly concur. Survivors everywhere should welcome this decision by the highest court in the land. They should also note that one of the judges who made this decision was Lady Hale, one of the people who sadly turned down the offer to chair the statutory inquiry into child sex abuse after it was made clear that the Lord Chief Justice did not want any sitting judges from the UK chairing the inquiry. It may be a sad loss given what this judgement concluded.

POSTCRIPT: James Rhodes is launching his book at the Hays Literary Festival on Saturday May 23 (tomorrow). the link is 

Banned VIP child sex abuse memoirs: Supreme Court orders expedited hearing

There has been yet another important development in the extraordinary saga of a British court granting an injunction which banned a famous performing artist publishing his memoirs in which  he disclosed he was sexually abused as a child.

The excellent Inforrm blog reveals that the artist has won his case to appeal and the Supreme Court has granted an expedited hearing so it can be heard next month rather than waiting until the spring.

Inforrm reports : “The hearing of the appeal is listed in the week commencing 19 January 2015.

“As we reported last month, on 6 November 2014 the artist applied to the Supreme Court for permission to appeal against an order of Court of Appeal dated 9 October 2014 ([2014] EWCA Civ 1277) granting an interim injunction to restrain the publication of a book which deals with his art form and his recovery from the sexual abuse he suffered in his childhood and his consequential mental illness.   The full application to the Supreme Court can be read here [pdf].

The application for permission to appeal was supported by a written intervention made by free speech NGOs, English PEN, Article 19 and Index on Censorship.

On 9 December 2014, Lady Hale, Lord Carnwath and Lord Toulson granted the artist permission to appeal against the Court of Appeal’s decision and ordered an expedited hearing of the appeal.

We had a post in which Dan Tench expressed “shock and disbelief” at the Court of Appeal decision.  A number of prominent UK writers, including Sir Tom Stoppard and William Boyd, signed a letter from English PEN protesting at the banning of the book.”

The full application to the Supreme Court is well worth reading as it shows the author wants to share his experiences of his abuse, the mental trauma he suffered and how he was driven to self harm but was later in life able to come to terms with what happened to him. It also reveals how his love  of music helped him overcome the trauma.

The ban was granted after his ex-wife sought it to prevent his son, who lives abroad, and suffers from a number of medical conditions, from ever reading it. But it used obscure case law which the artist says amounted to a severe curtailment of freedom of expression, hence widespread support from famous writers to get this overturned.