Thread by @pleepolitics

#BSBFreeSpeech (Continuing under a new chain) to avoid tagging others in. Mr H: ground 2 of appeal. This is only needed if ground 1 fails. Refers to Miller. Knowles J deals with interference with right of freedom of expression. Anything which impedes constitutes interference

... comparatively little is needed for it to constitute interference. Apart from the fact that I am subject to a warning, the BSB has also said that I have breached the handbook. Mr Miller had a conversation with PC Gold who had turned up to his workplace to discuss tweets

Mr Miller felt a deep sense of concern and embarrassment because of this. If you look at the very widely worded and ill defined warning that I have received from the BSB, I could have very similar feelings. The police's actions had a chilling effect on Miller.

Mr H: this either stands or falls in its entirety. Any fine, any slap on the wrist is an interference with my rights under article 10. In article 10, special protection is afforded to political speech or on questions of public interest

Mr H: (quoting) "freedom of political speech is of the very highest importance in any country that lays claim to being a democracy" #BSBFreeSpeech. In my submission, there was no justification in this case

Mr H: there is a difference between tweets not targeted and those targeted at an individual. Mrs B profoundly disagreed with (a tweeter), but that is the nature of a democracy, refers to Professor Stock who was recently driven out of her university. Cancel culture is pernicious

Chair: on context, your tweet shows Mr Salih's tweet below it. What is the effect? Did you reply to it?

Mr H: explains: it was a quote tweet.
Chair: does it also go to Mr Salih?
Mr H: I think yes it does (it might depend on whether his handle appears). There was lots of people who quote tweeted him for understandable reasons.
Chair: so it is likely he would have been notified?

Mr H: probably, but it depends on his settings, and also he might have had so many notifications that he may or may not have noticed this one

Mr H: cites Lord Justice Hoffman "a freedom that is restricted to what judges think is ok is no freedom at all. .... it must include the right to say things that people disagree with". "freedom only to speak inoffensively is not worth having"

Mr H: says that democratic progress depends on free argument, including disagreement, "without which there is no democratic society". Roosevelt: freedom of expression was the first of his 4 fundamental freedoms.

Mr H: I rely on these comments, I am engaging in debate, if "right thinking people" disagree with me, they have no right to stop the public from hearing my views. There can be no right to restrict debate in this way in a democracy

Mr H: I don't accept the BSB's restriction of my speech to prevent "offence to Muslims". I deny that "preventing offence" is a legitimate aim: it incentivises people to "take offence". That is not to say that abusive speech cannot be sanctioned (viz Diggins case). But Diggins is

.. vastly different. Warby J: in Diggins the Panel characterised the tweet as a personal attack on an individual to convey a gender and race based insult. The Equality Act never featured in this case for reasons I will come to.

Mr H: article 10 was raised as one of 14 grounds in Mx Diggins' appeal. The BSB and the Panel are both public authorities for the purposes of the Equality Act and the Human Rights Act. There was very little treatment given to the article 10 issue... The Diggins tweet was

of a quite different level to my tweet, and so you could see why it (the D tweet) could be viewed as worthy of restriction. Panel member: 86 is relevant? Thomas Williams: yes, I would not dispute that a single tweet could be enough.

(Correction: T Williams was the panel member, Mr H said "yes, I would not ... ") Mr H: that deals with interference and pursuit of a legitimate aim. I now address necessity: was it necessary in a democracy? This must be construed strictly, I have no hesitation in saying that this

restriction was not necessary in a democracy. This tweet was not raised until 3 months after a furore with a completely different tweet. I have only recently seen relevant documents (that the BSB kindly supplied to me). (Refers to memo 27 Jan by head of Chambers)

Statement to Chambers referred to "Afro hair tweet". As an afterthought in a pile on, "we have since been alerted to other tweets on his personal account that we refer to you to take into account in your investigation". The BSB never investigated the authorship or motivation

of complaints received. Was there any political motivation? Someone did a search of tweets and submitted 17 tweets to BSB, this person might well have been a left wing journalist saying "Mr H is a conservative, he is wrong and I am right". But Chambers only ever sent the tweets

not the wording of the complaint. So no investigation was carried out (by the BSB) of what the motivation was for that complaint.
Chair: is it your submission that there was something unfair about your investigation
Mr H: for the sanction to be necessary in a democracy

the BSB should have investigated the circumstances and motivation of tweet. The BSB did no such investigation with regard to this tweet, only with regard to the "afro hair" tweet, which they exonerated me on

Mr H: it does not matter whether people agree with me or not, the statements were of my political beliefs. No individual ever raised these 17 tweets (including the Salih one) with the BSB. The BSB just referred to the screenshot of these tweets (with no other comment) by Chambers

Mr H: the BSB never raised this tweet with me (as opposed to the Afro hair one). The BSB made no disciplinary finding against me, so how can it be necessary for them to impose this sanction. Re article 10, there clearly was interference, this was not legitimate or necessary

in a democracy. That concludes ground 2 of appeal.
Question from Chair re proportionality: I invite you to comment on what the impact of proportionality is
Mr H: any interference needs to satisfy the tests, no matter how low the sanction. Had I not been fined, I would still have

been concerned by the warning, and that would have inhibited my speech. You can only consider the proportionality issue if the threshold has first been surmounted.
Chair: where article 10 applies, any restriction upon genuinely hateful speech is easier to justify, and you should

.. look at proportionality ?
Mr H: isn't Warby J saying that freedom of speech is in a different category because it is so important? What is the pressing need that means that any sanction is necessary?
Mr Williams: aren't legitimate aim and necessity intertwined
Mr H: yes.

Mr H: I think the BSB fails at legitimate aim. But I felt that I still needed to explain why it fails also on necessity
Mr W: if it doesn't engage article 10 2, how can it bring the profession into disrepute
Mr H: yes

Kathryn King; are you saying that if you have fallen foul of Equality Act and article 10, you cannot have breached the BSB handbook?
Mr H: essentially yes, if my views are worthy of respect in a democracy, there is no public interest in the BSB sanctioning them

Mr H: Ground 3: the actual charge was that tweet "might offend Muslims". My conduct did not impugn me or the profession, my speech is worthy of respect in a democracy. It was not in context of my professional practice. To reflect badly on profession it would have to

be such as to bring opprobrium, which it was not. It "Morally culpable or otherwise disgraceful" conduct outside work can bring disgrace/reflect badly on the profession. That is the threshold test which must apply. There is no way that my tweet meets that.

Mr H: I of all people respect the profession and professional code and I wish the BSB would respect that, and recognise that I have 2 different lives: professional practice and my private life.

Mr H: The BSB must not confuse the 2 in a way that makes it impossible for professionals to have another life. The BSB must not neuter professionals in political life just because they are barristers.

Mr H (and this is astonishing and does not reflect well on the BSB in my view): "the BSB has made an unwarranted assertion that I may not be trusted in public practice because of the political views I hold. "

Mr H: says that laws must be accessible and foreseeable. Quotes John Adams. A power that depends on discretion must be sufficiently constrained by some legal rule. Core duty 5 is too broad for anyone who is engaging in political speech to know how the BSB will react to it

Mr H: Guidance 25 says "other conduct that is likely to breach core duty 5 includes .. seriously offensive or discreditable conduct". Social media guidance: "comments designed to demean or insult are likely to diminish confidence in the profession". That was the charge that

was put to me with regard to all 18 tweets.
Mr Williams: Choudhury J was referring to this?
Mr H: I invite the BSB to revisit its guidance in the light of [Forstater].
Mr W: you can impute intention is someone says something that is extremely insulting
Mr H: yes, but it needs

some kind of epithet , e.g. "extremely" insulting.
You can see from the way the BSB ultimately resolved my case that it has far too much discretion. It found my culpable (if that is the right word) on something completely different, not "designed to demean or insult"

Mr H: judgment found that none of the 17 tweets were seriously discreditable, but then it looked at tweet 14, and concluded that the ordinary reader would conclude "that Muslims were to blame" and that it "could offend and arouse hostility"? Where did that come from?

Chair: what about perception?
Mr H: no it would have to be an objective test
If the test is that "someone can perceive that they have been offended" then no, because that gives the heckler's veto. There needs to be some objective test, as per Choudhary J

Mr Williams: yes, the sort of test where you know it when you see it
Mr H: the test there is whether someone has said something espousing nazism or totalitarianism or engaging the gravest forms of hatred. The BSB could easily reword its guidance in that way, and it

should explain why if it uses different wording. As professionals we need to have an understanding of what we can and can't do in our life. When it comes to political speech, which is very important in a democracy, the guidance needs to be much clearer.

Mr W: isn't it also that laws need to be clear and easily understood. If penal statutes are ambiguous, it will be interpreted such that a person will not be penalised due to this ambiguity.
Chair: how much longer are you likely to be Mr H?
MR H: I think I will finish by 1300.

Mr H: ground 4 will be very quick.
Mr H: the BSB has far too much discretion currently.
I challenge the threshold of "offence" and "could promote hostility". Colllins J in case when Ken Livinstone was mayor of London. He was doorstepped by

journalist from Evening Standard. Mr L asked "what did you do before? where you a German war criminal". Journalist: "No , and I am Jewish". Mr L then compared him to a concentration camp guard. Mr L was sanctioned and appealed before Collins J.

Mr H: Collins J said Mr L was not engaging in political speech. Nevertheless, free speech does include speech that may offend. "People can say what they like providing it is not unlawful". So even though it was not political speech, it was still permitted.

Ms King: are you saying that a regulated professional may use offensive speech?
Mr H: I do accept that it was right that Diggins was sanctioned. My statement was not grossly offensive. Some might have been offended, but that is the nature of political speech.

Mr H: but I point out that even with Mr Livingstone's non political speech that caused offence, Collins J overturned the sanction. My speech was both political speech (so subject to higher protection) and not as offensive.

Mr H: the "offensive" threshold is too low, it amounts to a heckler's charter.
Mr H: now turning to the second part of the charge "could cause hostility". Why "could"? I suggest that the BSB put that because it could not claim that it did cause hostility. And hostility

is too low: political groups of different views are often hostile to each other. Hostility (rather than hatred which would be wrong) is too low a test.

Mr H: also, if Muslims as a group must be protected, where does it end? People with particular views on abortion? or on any other political viewpoint? Just wrong to protect a particular group.

Mr H: that concludes ground 3.
Mr H: ground 4: unfairness. I was given no opportunity to respond to the criticisms of the tweet. The 6 reasons of Lord Justice Bingham (table of authorities has just closed down, Chair refers him to page 31) under the right to be heard. I rely on

Mr H: all 6 (no opportunity to put my case, ...). I should have had a right to address the BSB/IDP on this issue, Particularly because this was a new charge. The way it was ultimately formulated differs from the charge put to me in March. (dropped "designed to demean or

"insult", and instead added "cause offence and could provoke hostility". The BSB misunderstood my tweet (because I wasn't there to explain to them): they are attributing blame, I said "playing a central role". In personal life blame is appropriate, in political life rarely so

Mr H: they also make a subtle misreading of my tweet, claiming that I "refer to Muslims as a class". I did not say all Muslims, I said some Muslims. There is no basis for the BSB to take the worst possible interpretation. I have sent 10000s of tweets over 10 years

Mr H : on a large number of topics. Refers to one tweet in defence of Muslims who might not welcome the BSB's LGBT promotion. As a conservative I quality that I have concern about unassimilation. I was not targeting Muslims as a class, I was making a political point.

Mr W: do you accept that the tweet meant Islamists and some Muslims who are not Islamists?
Mr H: if you take the example of the people protesting outside Batley Grammar, not all of those would be Islamists. The tweet meant "Mr Salih and others of that ilk", but I could not

Mr W: yes, that is how I understood this
Mr H: yes, and I could not put that point to the IDP because it was not put to me,

Mr H: the sanction was an act of discrimination and impacted on my article 10 rights. This infringed my article 6 civil rights.
Mr W: article 6 does not admit of any exceptions
Mr H: I believe that is the case, if it is engaged.
The BSB says it is not engaged.

Mr H: I accept that article 6 is only engaged if the professional loses the right to practice. But that is not my complaint: the BSB's sanction has impacted on my right to free speech. (His pc is having problems to refers to hard copy of book)

Chair: p79 rights and obligations with regard to private persons?
Mr H: yes. Rights that are protected include non pecuniary ones. Freedom of expression and assembly: my article 10 and 14 rights have been infringed upon, and that engages article 6. Political speech is included

Mr H: I should have had all the rights under article 6. But the IDP was not independent, it is not sufficiently indpt from the prosecutor. There was no disclosure of documents. No right to a hearing. No right to see the panel. no right to an oral hearing. No proper hearing.

Mr H: and as you know I always wanted these hearings to be in public. It is very wrong of the BSB to want to impose sanctions in private. How many barristers have been sanctioned in this way? I have no idea.

Mr H: I cannot think of something that is more likely to diminish the reputation of the BSB than it imposing politically correct views via secret sanctions.

Mr H: in closing. "The freedom to speak only inoffensively is not a freedom worth having". Calls for the appeal to be allowed in a democracy.
Chair: were you given an opportunity to ask for an oral hearing?
Mr H: chambers complains in Jan. In April I was told that BSB

Mr H: was investigating. I was not invited to attend the IDP. I don't think I even knew when it was meeting, I was just told that a decision would be made in August. It met on 2 August and I was informed on 9 August.

Mr H: I appealed within the required period, and as you know I asked for this appeal to be heard in public, and the BSB has resisted this. And last week his honour HHJ Jonathan Carroll approved my request that this be heard in public.

Chair: asks other panel members if they have any questions at this point? No? then we break for lunch until 1400.

Now restarting #FreeSpeechBSB
Panel to hear from Jonathan Auburn QC for BSB.
Mr A: I will make 4 points. 1. The test this panel is applying. 2. What the IDP saw as the ordinary meaning of the tweet. 3. What the IDP decided. 4 The short answer to the appeal

Mr A: the test this panel is applying. Did the IDP err or did it impose a manifestly excessive. The task is not to retake the decision afresh, this is a review not a redecision.

Mr A: will refer to Beckwith and Diggins. Beckwith: (an SRA appeal). The question is was the IDP's decision wrong? The meaning given to the tweet. The conclusions should only be revisited if outside the bounds of what the IDP could reasonably have decided. Evaluation of facts

Mr W: on the question of wrong, the test for wrong: supposing we were to come to a different conclusion on the meaning of the tweet, could we still dismiss the appeal on the grounds that the IDP would still reasonably come to its conclusion. You are an appeal body: you must find

Mr A: you must find an error in order to overturn. Diggins re appeal test: decision is wrong if it contains an error of fact or law which would affect the outcome. Need to accord appropriate respect to the lower court.

Mr A: working from the same evidence not likely to interfere with the conclusions of the lower court. "As appellant if he is to succeed, must persuade ... that on objective grounds a different view is the right one". The true distinction is where an appeal court might

Mr A: prefer a different view, and one where a different view is required. That is the relevant distinction you need to bear in mind.

Mr A: part of Mr H's view is that a different view should have been reached. You need to decide which side of the line this case may fall on for any concern you may have. That is the appeal test.

Mr A: the second point is what the IDP saw as the ordinary meaning of the tweet. We could spend a day arguing about the meaning of a tweet. I have put in written submissions: point 1 re meaning is from professional standards authority case. IDP was looking to the

Mr A: objective meaning. Refers to a case where an appeal was allowed because a disciplinary body was wrong with regard to intention. You are not trying to fathom what was in Mr H's mind when he typed out those tweets (I mean that tweet). you need to bear in mind what the IDP

Mr A: had in mind. Refers to a libel case: when interpreting a tweet, important not to be overly analytical, consider instead what an ordinary reader is likely to think. So don't carve up a sentence word by word, look at impression a reader is likely to get.

Mr A: nothing to suggest that the IDP was acting inconsistently with that. What they decided seems reasonable: that on an objective basis the meaning of the tweet, that "Muslims in some way were responsible for the death (figurative) of free speech". I am just summarising.

Mr W: I would prefer to see the actual finding itself, rather than referring to a paraphrase
Mr A: yes, I take the point, better to have the page in front of you rather than my summary. The first point is the other tweets, the IDP found that there weren't any breaches in relation

Mr A: to the other tweets, so I make the point that care was taken in considering each tweet. The panel thought this tweet was different.

Mr A: the IDP cite context (Mr H was saying that the panel had not considered context), including the beheading of #SamuelPaty. The next sentence is to consider what the ordinary reasonable reader would think, so no error here.

Mr A: this was: "Muslim community was to blame for death of free speech". There is no error here I submit.
They then apply the test in Core Duty 5, and consider that this "would not only cause offence but could cause hostility to Muslims as a group".

Mr A: Mr H says that the IDP changed the test or moved the grounds. They didn't: they looked at Core Duty 5 and they showed the reasons why they thought it breached. There is no error of law here.

Mr A: Mr H expressed concern over the wording. What "Could" means is an expression of a likelihood or possibility, it is not an absolute. That's all it is doing. They considered this to merit sanction under CD5. And "hostility towards Muslims as a group": again there is no

Mr A: error there. The appeal panel might have come to a different decision, but that is no error on the facts.

Mr A: the IDP was deciding whether or not CD5 was breached ("diminishing trust and confidence placed by the public in you or the profession of barrister"). The IDP was entitled to conclude that speech which they felt meant "Muslim community to blame for the death of free speech"

Mr A: could lead to hostility and hence breached CD5. That's what the IDP decided. Going back to the ordinary meaning: the IDP was entitled to come to an evaluation of the facts that they did. The message that is conveyed is about a group defined by their religion.

Mr A: the tweet said "Islamists and other Muslims" and was such as to contribute to the death of free speech.
Mr W: they didn't say contribute they said "to blame". We must be careful to use the exact words.
Mr A: I agree the right approach is to look at the actual words.

Mr A: if you go back to the way tweets are to be evaluated it is the broad impressionistic meaning that matters.

Mr A: Twitter is not a forensic medium. It is very hard to see any error in the IDP's conclusion. They are entitled to have that view.

Mr A: Mr H has made various submissions about the meaning of his tweet. I don't want to go over these in detail, I have put written submissions about those. I just would like to mention two.

Mr A: it is important to remember that it is not what Mr H's intention that matters. Some of Mr H's submissions do stray into the approach of being overly analytical. e.g. he said "central role".

Mr A: Mr H also said that the IDP took the tweet out of the context. I don't think that is sustainable: the IDP referred to the Charlie Hebdo and the beheading.

Mr A: so taking a broad interpretation of the tweet, the IDP was entitled to come to the view it did. That concludes my first two points.

Mr A: the short answer, then I will look at the individual appeal grounds.

Mr A: the short answer: the task of this panel is to consider whether the IDP erred 1) ruling on the main issue 2) did the IDP err in its finding, 3) did the IDP err re article 10

Mr A: ruling on main issue. CD5 is broadly drafted, and that is deliberate. That arises from the nature of its task (maintaining the confidence in the profession). It is very difficult to see where there is any error in the DTP's decision.

Mr A: re Diggins it is very difficult to see where the IDP went on a different side of the line such that you would want to change the view.
Mr W: please would you explain that again?
Mr A: CD5 broadly defined, combined with the Diggins test, the distinction as to whether you a)

Mr A: a) prefer a different view, or b) require a different view. It is hard to see how you would come to b)

Mr A: did the IDP err in finding that the tweet infringed CD5? We say plainly no error here. We went through the key paragraph here and there is no error in approach.

Mr A: Did the IPD err in their decision on article 10? This will take some time. To flag up where I'm going, we say it is accepted that 10 1 is engaged. Mr H chose to be part of a regulated profession with specific rules and those rules included not behaving in a way that

Mr A: diminished confidence in him or the profession. The panel imposed the lowest (or almost the lowest) sanction (£500 as opposed to the lowest £400). We say that CD5 was justifiable and proportionate and there is no breach of Article 10 2.

Mr A: Mr H has referred to Page v NHS. Mr Diamond would say "the implication is that Christians would need to remain silent about their beliefs to avoid causing offence to others". The judge said that is true up to a point, because the freedom to express religious or any other

Mr A: beliefs can be limited by imposing restrictions on how those beliefs can be expressed in public when they work for some organisations.

Mr A: Mr H was not a member of the general public, unlike Mr Miller. Mr H had chosen to be a barrister which brought with it some limitations.
Any questions?
Chair: no, but does any other member of the panel.
Mr W: you talk about Mr H chooses to be a member of the profession

Mr W: but if it is not necessary to restrict his speech in this way, if it does not bring the profession into disrepute, how does that breach CD5?
Mr A: CD5 places limits on freedom of speech - I can't remember your wording here

MR A: the test was "trust and confidence that the public place in you or the profession"
MR W: can there be an exception to article 10 2. Would a member of the public have trust lowered in circumstances where the tweet didn't justify

Mr W: curtailing his expreession in a democratic society?
Mr A: yes 10 1 is engaged. We then go to 10 2: proportionality test. We look to what did the IDP find: they found "would cause offence and could cause hostility towards Muslims as a group".

Mr A: so the issue is was the sanction proportional?
Mr W: aren't you jumping a step: you have to justify legitimate. You have to demonstrate 10 2

Mr A: article 10 2 has a number of steps. 1 is legitimate aim, if you establish that we move on to proportionality. I wasn't intending to skip them.

Mr A: apologies for jumping around a little bit. As we are in ground 2 I could continue and then go back to ground 1 (discrimination), I 'm in your hands.

Mr A: I'll now go to ground 1, direct discrimination. We say 1) it cannot be brought, 2) even if it could we can't see a comparator, 3) the tools for discrimination claim don't exist, 4) the substance doesn't exist.

Mr A: 1) it cannot be brought as a ground for appeal. Mr H refers to Lewisham case. You cannot bring a complete discrimination case as a ground of appeal. This was a housing act statutory appeal, and the appellant sought to bring an appeal on discrimination grounds.

Mr A: the outcome was that no, you have to bring a separate case for discrimination, not an appeal. Lewisham applied to have the discrimination ground struck out. Proceedings relating to the contravention of this (Equality) Act must be brought in accordance with this part.

Mr A: there are some exceptions but none of these are relevant here. You can bring a discrimination ground in a judicial review, but this is not a judicial review. This is not a purely technical point. A discrimination claim would follow very different procedures.

Mr A: we say therefore that this is not the forum for Mr H's ground 1. Mr H is saying that the IDP made an error and you cannot uphold an error. But that is wrong because this appeal panel is not one of the mechanisms for remedying such a breach.

Mr A: 2nd point is that there isn't a comparator, or evidence for a comparator.
Chair: this point kicks in in the event that we disagree with your 1st point?
Mr A: yes. Discrimination requires a comparator. Mr H says I'm wrong and we don't need a comparator. Equality Act S 13:

Mr A: quotes S13 A : about how A treats B with how A treats others. I explained why Mr H is wrong in what I sent yesterday. case Beady (sp?): the comparators have to be similar. The less favourable treatment question and the reason why questions.

Mr A: the less favourable treatment question requires a comparison. The two questions are intertwined and it will often be simpler for the panel to ask the reason why question first. Notice that it says often, not always. The reason why question is not the only question.

Mr A: a comparator is required. That is the essence of direct discrimination. The 3rd point I want to make is: it is impossible to determine a discrimination claim in the manner that Mr H requests.

Mr A: a discrimination claim needs disclosure, cross examination, we don't have any of those tools. We don't have the comparator. So it is impossible to decide this.

MR A: the 4th and final point on direct discrimination. Even if the first 3 are not accepted, from a common sense point. The reason why Mr H was sanctioned you take from the IDP's decision: because his tweet is "likely to diminish trust and confidence in the profession"

Mr A: that's the reason why, is not because he is a conservative, it is what the IDP said. Having conservative views doesn't equate to expressing oneself in a manner which diminishes trust and confidence in the profession.

Mr A: the final point is "would a person with different political views be sanctioned"? You have no evidence before you nor do you have the tools to decide that. But the answer is that they might well be. Mr H claims that a right wing person would be sanctioned not

Mr A: not a left winger. There is no evidence for that.
Mr W: didn't the Beckwith case caution courts against jumping on passing bandwagons?
Mr A: the IDP found no misconduct on the other 17 tweets, so that doesn't fit the narrative of left wing bias.
It follows that the IDP must

Mr A: have looked at those tweets with a reasonable degree of care.
Mr A: turning to article 10. Positive case of BSB: free speech is a qualified right, here qualified by the BSB rules. The IDP considered this. The finding was one of article 10 2 which one only gets to if

Mr A: article 10 1 is accepted. So IDP did accept 10 1 applied. 3rd point is that courts have accepted that employers may limit speech, e.g. Page v NHS.

Mr A: 4th point: one must take care with free speech cases not to generalise from other cases which do not involve regulated members of a profession. 5th point: the right to offend. The difference between speech in general society and

Mr A: speech coming from member of a regulated profession. It is required of members of the latter. The professional body does not afford a general right to offend. 6th point: Mr H says his tweet is an expression of his conservative views. We accept that, and it comes under 10 1.

Mr A: but that is not where it ends. 7th and final point: if the message diminishes trust in the profession, then they can be sanctioned for that speech.

Mr A: I then want to address Forstater, and then make some general points re article 10. Unless there are any qs?
Chair: no? Let's continue
Mr A: the issue of Forstater was whether the beliefs were worthy of protection, even before you get into article 10

Mr A: what had been said was that @MForstater 's views were not even through the gateway of being protected under article 10. We link Forstater to the 5th Grainger criteria. We accept that Mr H's conservative views are a belief. The argument was that Ms F's views were not

@MForstater Mr A: protected under article 10 (as ruled by the lower tribunal). That was clearly wrong and the appeal tribunal concluded that was the case. The EAT determined that her views *were* protected.

@MForstater Mr A: so the point was whether the views were sufficient to get to the gateway of article 10.
Chair: are you saying that the gateway was article 17?
Mr A: yes and article 9 and 10
Chair : and was it remitted?
Mr A: yes. And it said nothing about 10 2 which is where we are.

@MForstater Mr A: Mr H has also raised points of threshold. He has shown you Diggins where the speech was gross offence. But the test is not that, it is CD5, diminish trust and confidence in the profession.
Mr W: is there any authority which grapples with the interplay between CD5 & art10?

@MForstater Mr A: I don't have anything more than I have already shown you
Mr W: is the highpoint of your case Page v NHS?
Mr A: yes, it certainly makes that point. I'm afraid I can't bring you up another case

@MForstater Mr W: is another way of looking at it to say that CD5 has to yield to common law rights? CD5 doesn't trump common law rights?
Mr A: I wouldn't put it that way
Mr W: I'm sure that wouldn't be your case

@MForstater Mr A: the IDP did consider that CD5 was breached and then that the imposition of a sanction would infringe article 10 rights

@MForstater Mr W: the law recognises that you have to grapple with the issues under article 10 and CD5

@MForstater Mr A: you have to recognise that the Panel did consider this (concluding that this low level sanction did not infringe his A 10 2 rights) and this was the proper way to approach the issue

@MForstater Mr A: there is no mystery aim here. The aim is to have standards to regulate the profession. That includes the rule not to diminish trust and confidence the public holds in the profession.

Mr A: how the profession serves its community. The wording of 10 2 contains within it "protections of the rights of others". We have regulation of barristers not for own benefit but for others and that's legitimate.

Mr A: turning to "necessary in a democratic society" which is the proportionality test. I make 3 initial points then I will respond to the specific points Mr H has raised (7). 1. It is necessary to regulate the profession and as part of that CD5 is needed.

Mr A: 2. The IDP's decision was part of that regulation, it was not unthinking, because they found for Mr H on 17 out of 18 tweets. 3. They imposed the lowest sanction possible. One of the panel picked up that

Mr A: the level of the sanction is relevant to proportionality. It would be very different if the BSB had decided to disbar Mr H.

Mr A: turning to Mr H's 7 points. 1. The tweet sanctioned for was raised later, after the event. (Screen has just frozen!)

(my connection went down for a few minutes)

Mr A: Mr H's 3rd point was that there was no investigation of the authorship or motivation of the complaint. The IDP's task was to look at the objective meaning of the tweets, it was not to look into the mindset of Mr H. The BSB had tweets referred to them they examined them

Mr A: The IDP's approach was correct. 6th point is that other tweets were not considered, and 7th point: only 1 tweet. But that can give rise to the lowest level sanction and doing so was not disproportionate.

Mr A: Mr H's claim that the outcome was not disciplinary in nature. But that goes to the low level of proportionality, so supports that the IDP decision was proportionate.

Mr A: that is, unless I can assist you or clarify anything on article 10, that is my submission on ground 2.
Chair: not from me. Others? no

Mr A: Ground 3. Mr H claims that the IDP was setting the bar too low, it wasn't in the BSB handbook.

Mr A: re bar too low, if you look at the IDP decision, the "causing offence and could cause hostility" that was not a free standing charge, it was reasoning as to breach of CD5.

Mr A: the IDP took a different view from Mr H. You need to decide whether that view was reasonable.
Mr W: And you are saying that although we might come to a different view, that is not the test in your submission.

Mr A: Mr H is if I may say mis-usuing the [Remedy] case. That was dealing with misconduct we are not dealing with that but CD5. Mr H also says that the conduct does not impinge on his practice. But he is a member of the a regulated profession, there is no error in the IDP

Mr A: coming to the decision that the tweet would diminish confidence in the profession. The Beckwith case was very different: that was a private sexual matter, not something expressed in public.

Mr A: there is no basis here for saying that there is an error here. The IDP had the CD5 threshold in front of them, they applied that test, there is no error here. It is wrong to look at Mr Livingstone, who is not a member of a regulated profession.

Mr A: and that is also why the case of Mr Miller (a former policeman, not a member of the bar) is not helpful. Mr H says the charge was not in the BSB handbook.

Mr A: we have looked at the actual decision of the IDP. The charge was a finding of CD5, that is the test they look at. To the extent that there were extra words, these were reasons to support their finding.

Mr A: Mr H raised a point about the guidebook. I dealt with that in my submissions so won't refer to it here.

Mr A: Mr H made some wider points on the validity of the BSB regulation. This Panel does not have the remit to decide those.

Mr A: that just leaves the final ground 4.
Chair: conscious of time. We may need to sit a little later.

Mr A: 4th and final ground. This is essentially a claim that article 6 is breached. My principal submission is that the sanction imposed is not one which attracts the protection of article 6. The low level of sanction is nowhere near engaging his right to practice.

Mr A: There is a lot of Strasburg case law on this. Article 6 is only engaged in a disciplinary setting where the individual's right to practice in affected, and we are very far from that here. Refers to Compton v Law Society: heading Reprimand and Severe Reprimand.

Mr A: the civil right is the right to practice as a solicitor. (Sorry, it is Leconte [sp] not Compton). "Disciplinary proceedings do not normally lead to a contestation of civil right, but may do in certain circumstances."

Mr A: "to do so they must be decisive". So we are not in that territory. Suspension would, but not a warning. In a case where a barrister was reprimanded this did not engage article 6. Same with severe reprimand: does not determine civil rights.

Mr A:and Mr H's sanction was far lower, so nowhere near article 6 territory. Mr H then says that it is not that which brings in art 6, but my article 10 rights (freedom of speech, not freedom to practice law). The IDP and the Appeal Panel are not making a determination of Mr H's

Mr A: article 10 rights. Every public body that makes any decision must have regard to EHCR rights, that does not mean they are directly determining article 6 rights. If it did, art 6 would come in to any public body decision.

Mr A: if Mr H is right and article 6 is engaged by such public body decisions, the whole BSB system would need to be thrown out
Mr W: I'm not sure that is necessarily an argument against that. Eg. when Courts martial had to comply with Art6, the whole system had to be redone

Mr W: e.g. to make sure that officers from different regiments were involved in decisions
Mr A: you're not capable of redoing the whole of the system in this appeal

Mr A: in any event, this would not get Mr H to where he claims. The protections of article 6 don't need to be imposed at every step, you look at the whole of the process, including the ability to challenge your decision by judicial review. That would be sufficient to satisfy A6

Chair: what is the case law on that?
Mr A: gives case reference (too quick for me to note)
With the big bang, the whole planning system would have had to restructure if article 6 applied to planning appeals. But the outcome was that no, because judicial review was sufficient.

Mr A: that is ground 4. I just want to check that I've covered every point. I think I have covered the principal points.
Chair: please take a moment to check
Mr A: I think those are the principal points, unless I can assist you on anything.

Chair: I'm conscious that normally we would sit until 1615. Is there a cut off time for us?
Official: no, you can continue as long as you like.
Chair: Mr Holbook would you like a short break?
Mr H: thank you Madam, I would like 5 minutes if I may & I think I will take c 30 mins

Chair: thank you that is v helpful. We will reconvene at 1620.

starting again :
Mr H right of reply.
Mr H: dealing with Mr A's points. Point 1 was not to be too analytical about tweets. But I think one needs to be v cautious re drawing comparisons with libel cases where the court has to decide on meaning

Mr H: but actually it is the BSB which is being too analytical. My tweet meant what it said and nothing more. He said I was wrong to refer to the "central role" and not the "only role", but that is what my tweet actually said. The BSB distorted my tweet.

Mr W: If we were to find that there was distortion, would that engage our appeal role?
Mr H: absolutely, if the IDP made an error by misunderstanding a tweet, that is an error that should be corrected.

Mr H: Mr A says that CD5 is worded broadly of necessity. As a general principle I accept that, but it is different when we are talking about free speech and A10.

Mr H: there the BSB needs to be more prescriptive to be fair to members of the profession. And with respect to the BSB they have illustrated the point by the sloppy way that they have conducted this case.

Mr H: that's why prescription is required when it comes to interfering with the right of free speech of a professional. And they could rely on the wording of Choudhary J for example in describing the limits of free speech.

Mr H: Mr A also said that it was a logical consequence of my argument was that no speech would ever come under CD5. That is not what I said, I don't have a problem with the judgment in Diggins. That was overladen with very derogatory epithets.

Mr H: turning to the grounds of appeal. Mr A says I can't use ground 1. Let's assume that he is right, then that means that every public body need not have regards to Equality Act in this way. That is not what parliament intended. And I have not brought proceedings:

Mr H: it is the BSB that has brought proceedings. So I am entitled to rely upon this unlawfulness as a ground of appeal.

Mr H: on the issue of the comparator. In my statement Underhill J: Page v NHS: "It is trite law that it is not necessary in every case to establish a comparator". Until you have decided what the reason why was, you cannot have an effective comparator.

Mr H: I say that I was discriminated against because of my politics, Mr A says it is because of texts that could be offensive
Mr W: what evidence do you have for that for us?
Mr H: It is clear that common theme to all 18 tweets is a challenge to mainstream political opinion

Mr H: re article 10, Mr A said a number of times that I had agreed to be a member of a regulated profession. I have no quarrel with that principle. The question is how should it police personal political speech.

Mr H: we know that political speech deserves a particularly high level of protection. Mr A says that a professional is not entitled to that protection. But in lots of cases, judges have said that "offensive and so on speech" is protected by A10.

Mr W: how do we read CD5 in the light of the various cases you have referred to
Mr H: it needs to be applied in its full rigour with regard to not breaching barristers human rights and that must stop. I do urge this panel to give a ruling to end this tyranny of cancel culture

Mr H: that has claimed so many scalps. It must be made clear to regulators that they must respect article 10 for professionals.

Mr W: I think you have said that you would agree that there are limits to what can be said

Mr H: with regard to Diggins it was overborne with personal and gratuitous attacks.
Mr H: I don't think anyone can find a single tweet that offends the ruling set out by Choudhary J.
Mr W: you say that is the sensible limit in CD5

Mr H: Yes
Mr H: Mr A says that many times that the IDP cleared me on 17 out of 18 tweets. That smacks of the playground bully who is determined to find fault. The right to free speech is inhibited just as much from being sanctioned for 1 tweet.

Mr H: professional misconduct is the umbrella term, and CD5 is an aspect of it. So the case Mr A referred to was talking about general principles for regulation of a profession. Refers to case of Hand

Mr H: Mrs Justice Lang: a disciplinary tribunal heard 8 charges of professional misconduct (charge 2 related to conduct contrary to CD5). CD5 is a subcategory. The judge refers to the importance of Remedy.

Mr H: judge: did the tribunal err? She cites Remedy, which in my submission applies to misconduct in general. It was necessary for BSB to find conduct of a "morally disgraceful etc": that is the nature of the test the BSB should have applied.

Mr H: I don't take issue with Mr A's submission that Article 6 only applies if a professional has lost their right to practice. But those cases only applied from professional work. I say article 6 applies because there has been an infringement of article 10 (freedom of expression

Mr H: and article 14 (freedom from discrimination). There can be compliance with article 6 if at the endpoint there is a possibility of a final hearing that complies with article 6. But I have been found guilty of misconduct without any hearing at all, and without

Mr H: being able to respond to the points raised. Judicial review would not be a satisfactory remedy for me, in particular that judge would be stuck with the IDP's findings of fact.

Mr H: Madam I have finished before 5 o clock, but if you or your colleagues have a question, I will be pleased to answer.
Chair: re your ground 2. You mentioned that you do not know of any cases where a professional has been inhibited with regard to free speech. How does

Chair: the pharmaceutical company case fit in with that?
Mr H: if I have overlooked that then I apologise for that
Chair: It wasn't intended to catch you out, just to see if you could assist us?
Mr H: please give me a moment

Chair: please do so
Mr H: I'm looking at para 6b. "They - Zionists are responsible for the murder" : the wording objected to looks not quite the same as Diggins, but they are similar in that they look gratuitous, grossly offensive, slightly unhinged. This was 24 June, I don't

Mr H: know whether Forstater was cited.
Chair: I'm not sure either
Mr H: it doesn't look as if Equality Act or ECHR was looked into
Chair: I can't find any reference to article 10
Mr H: Actually the hearing date was 9 June which was before Forstater

Mr H: because Equality Act and EHCR were not cited, I don't think this is authoritative, and in any case the language used was much stronger, with personal abuse.

Mr H: so subject to that, I 'm not aware of any cases where professionals have been sanctioned for exercise of their article 10 rights

Mr A: may I draw your attention to one particular point so that you are not misled. Professional misconduct is defined in Handbook part 6 (definitions) in a way which takes out administrative sanctions.

Chair: I have no further questions for Mr H thank you v much for your reply. Just checking with the other panel members?
No
Mr W: can you address this point re distinction in Beckwith between private and public life.
Mr H: I wrote on this in submission, but I think it is

Mr H: difficult to draw conclusions from behaviour in private life. Actually, I do rely on the wording : individual s are entitled to have a private life. Professional regulation should stand clear of issues that do not touch professional life or the standing.

Mr H: I suppose that the BSB says it does, but that becomes circular. But it needs to be decided more widely, what do the public expect of their barrister? What the BSB is saying that the profession is undermined by having me in it. And that is wrong.

Chair: Thank you. Given the time I'm afraid we will have to reserve our judgment and that is proper given the very important issues raised. May I thank you both very much indeed, those were really helpful submissions. We will let you know the date for the resumption.

That concludes the #BSBFreeSpeech hearing for today. Essentially it seems to come down to this: does the BSB have the right (as it claims) to severely restrict political statements made in a personal capacity by barristers? That seems going far too far to me.

(My apologies for any errors or lack of clarity in the live tweets I took today. I am not a lawyer nor an incredibly fast typist [although being a pianist helps!]. But I would have taken notes anyway, so since others were interested, I live tweeted it instead)