HANDLE WITH EXTRA CARE

Martin Mears on a ruling that found

the Crown Prosecution Service guilty of racism and sexism

LAST year the Bedford Employment Tri- bunal found the Crown Prosecution Ser- vice guilty of victimisation and racial discrimination against one of its senior lawyers, Mrs Maria Bamieh. Mrs Bamieh has now been awarded £38,000 in compen- sation. This includes £30,000 for injury to feelings — not a bad little solatium.

Racial discrimination and victimisation in a government agency? That, surely, should be regarded as scandalous headline stuff. In fact, the Bamieh case has attracted barely a ripple of comment, never mind indignation. Everyone knows that in the outré culture of employment tribunals a finding of discrimi- nation does not necessarily mean that any- one has been unjustly treated or that the discriminators were, in any way, blamewor- thy. Racism has become a theological con- cept. It need not be malevolent or deliberate. Indeed, as Sir William Macpher- son has taught us, it is much more likely to be unwitting or 'institutional' — a snare into which even the most conscientious Guardian reader might unknowingly stumble. The CPS, like every other establishment body, has long since embraced the whole package of political correctness. In the face of accusations of discrimination it rolls on to its back, whines pitifully and licks the hand that beats it. Recently, it has encouraged the formation of a Black and Asian Prosecutors and Staff Association. It supports a 'Diversity Unit' as well as an Equal Opportunities Unit. It is engaged in promoting a Stephen Lawrence Action Plan and a 'Diverse and Racial Equality Action Plan 2000'. Mrs Bamieh herself is the chair of the new Networking Group for Ethnic Minority Women. Looking at all this exciting activity, it is surprising that an employee of the CPS has any time to bother with prosecuting criminals.

Mrs Bamieh conducted her tribunal case in person. This was a task for which she had ample experience. Back at the office, this exceptionally busy bee bustled about as a 'mentor', an activist in the staff union and a member of the Racial Advisory Committee. She had been complaining 'Single mums are so passe my dear, what you need is a double mum.' about racism at the CPS since 1993. In 1995 and 1997 she issued discrimination applications which, at the time of the Bed- ford litigation, were still in progress before another tribunal.

At the Bedford tribunal, her complaints ranged widely. Her colleagues, it seems, were a bigoted bunch. A Mr Bell, for instance, was alleged to have victimised and discriminated against her on grounds of race and sex in the advice he gave before the convening of a promotion board. Another colleague, a Mr Minsky, was accused of the same sin in giving her an unfavourable performance appraisal. Mrs Alison Saunders was alleged to have 'com- mitted an act of both discrimination and victimisation' when she countersigned Mr Minsky's report — und so weiter. You down-marked this lady at your peril.

Mrs Bamieh's main complaint concerned the conduct of the promotion board which dealt with her unsuccessful application for the position of prosecution team leader. This was not an elevation to be had for the asking. In the words of the tribunal, 'There are over 2,000 lawyers employed by the CPS. This means that there is strong compe- tition for any prospective promotion.'

But, according to Mrs Bamieh, there was a more sinister explanation for her lack of success. The board, she said, was 'little more than a sham, designed only to show that she had at least been given the oppor- tunity of being sifted for interview'. She alleged that the three board members were 'biased against her from the start, and that they intended simply to promote the white male candidates. Her case was that the board discriminated against her, both directly and indirectly, on the grounds of race and sex.' Not only this, but the board had, she asserted, victimised her.

Such are the allegations as summarised by the tribunal. They could hardly be more serious. This was not an accusation of mere unwitting or 'institutional' racism, Macpherson style. The members of the board are, in effect, alleged to have been conscious and cynical participants in an unsavoury plot.

One might imagine that in such a plot the conspirators would conform to stereo- type, i.e. they would be middle-aged, white males in waistcoats who, naturally, would be racists, sexists and victimisers. In fact, the three members of the board were, in the words of the tribunal itself, 'carefully picked'. It was (again, in the words of the tribunal) a 'balanced board' with a female chairman (Mrs Bermingham) and an ethnic minority member, Mr Cousey. The third member, Mr Chapman, was, admittedly, a white male.

Why on earth should this troika, one of whose members was a woman and another a black man, deliberately set out to 'pro- mote the white male candidates'? Only in the discrimination industry's culture of loony paranoia could such a suggestion be taken seriously. The board had, admittedly, seen Mrs Bamieh coming. It had been warned in advance that there were 'equal opportuni- ties and race issues' involved. There were indeed. Mr Chapman's interview notes had the words 'extra care' written at the top of the front page. These cautionary words, while providing obvious fuel for the con- spiracy theorists, must have been in every- one's mind. Looking at Mrs Bamieh's activist record, it was not inconceivable that, if she failed to get promotion, litiga- tion might follow.

Anyway, the members of the board embarked upon their task, thankless and foredoomed as this was under the scrutiny of the zealots. They employed elaborate marking procedures whose purpose was to achieve objectivity and consistency. Every candidate was assessed on the basis of com- munication skills, legal knowledge, manage- ment qualities, etc. Following an interview, each member of the panel would award an overall mark and the board would then arrive at a collective assessment.

Mr Chapman, it is plain, had an imper- fect understanding of the rules of this game. An experienced player would have kept the 'extra care' reflection to himself. The tribunal noted, too, that he 'reacted with scorn to Mrs Bamieh's suggestion that a poor advocate should be given training'. He displayed deplorable naivety (and lack of awareness training) in failing to realise that, compared with the factors of race and gender, actual ability to do the job was a minor consideration.

In due course, Mrs Bamieh was awarded her overall mark. Mr Chapman gave her a 'D', i.e. a 'near miss'. Mr Cousey also gave her a 'D', while Mrs Bermingham gave her a 'C' ('acceptable'). However one scrutinises these markings, it would seem impossible to extract evi- dence of racism or sexism from them. Bearing in mind that a 'C' is only 'accept- able' and a 'D' is a 'near miss', all three members of the board arrived at much the same conclusion. Assuming that Mr Chap- man was a racist and a sexist, what was Mr Cousey? Hardly a racist but perhaps a sex- ist? And Mrs Bermingham? Hardly a sex- ist but perhaps a racist? The mind reels. In these unpromising circumstances, how did the tribunal arrive at its conclu- sion that there had been both racist dis- crimination and victimisation? By this process: it concluded that the board had 'conducted the interviews and its marking system in a subjective manner. They aban- doned the guidelines they had been given. They failed to give full account to the per- formance appraisal reports. They failed to keep a proper record of their discussions.' Assuming, for the sake of argument, that these strictures are well founded, what have they to do with racial discrimination?

'So do I take it you've got a headache?' This was, as the tribunal itself found, an inexperienced panel. It is perfectly possible that it was insufficiently systematic in its marking procedure. It is possible, also, that because of this Mrs Bamieh received a less favourable appraisal than she might other- wise have done.

But, even accepting all these possibili- ties, there was wholly inadequate evidence that she had been victimised on account of her race or sex. As to the lack of system, it was, again, the tribunal itself which point- ed out that while the board's interview assessment of Mrs Bamieh was not tested against her performance appraisal report, the same omission occurred in relation to every other candidate.

The tribunal went on to declare that 'we believe that the members of the panel regarded Mrs Bamieh as a candidate who started with a disadvantage. They were ner- vous about her; and this nervousness is reflected in the records.' But how, in the cir- cumstances, could this or any other board not have been nervous — with a prospective tribunal application staring it in the face?

Employment tribunals, of course, are themselves integral units of the discrimina- tion industry. It would not have been sur- prising, therefore, if Mrs Bamieh had succeeded on the ground that she had suf- fered from unwitting, 'institutional' or some other kind of theological racism discernible only to properly trained witch-finders.

But, in the event, the tribunal went much further than this. It found that the three-person promotion board, which included a woman and a black man, had been guilty of 'both direct and indirect dis- crimination on the grounds of race and victimisation under Section 2 of the Race Relations Act 1976 and Section 4 of the Sex Discrimination Act 1975'.

Can the Director of Public Prosecutions, Mr David Calvert-Smith, QC, really believe this nonsense? It seems that he does, for, following the Bamieh ruling, the CPS has commissioned an academic lawyer, Mrs Sylvia Denman, to carry out a full internal investigation into its proce- dures. Mrs Denman has impeccable quali- fications for the job, having served with the Camden and Islington Health Authority, the Inner London Education Authority and the Race Relations Board. She herself is a part-time tribunal chairman, as well as being 'an independent adviser for anti-dis- crimination law and practice'.

Well, we must not anticipate Mrs Den- man's findings. It is just possible, however, that she will emulate Sir William Macpher- son in excavating the usual varieties of racism. What then? We have seen that the CPS already has its Diversity Unit, its Equal Opportunities Unit, its Diverse and Racial Equality Action Plan, etc., etc. How much further can it go in the way of breast-beating, self-abasement and pan- dering to the zealots?

Is there any limit to the sheer gutless- ness of the liberal establishment?