Thread by @tribunaltweets

Higgs v Farmor - We are starting. - we have permission to tweet.

Richard O'Dair - Counsel for Kristie Higgs asking to introduce an additional piece of evidence - a 3 page document that he received yesterday morning.

Judge Jenny Eady (JE) asks why it wasn't introduced earlier.
ROD says a large number of documents came into position.
It is an article by with two passages about transgenderism and the church of England says she will see what she makes of it.

ROD - wishes to address the issue of pronouns. Will try to address Mx Lord as such or use CEL, but i find it difficult.
JE - Could refer to the "laymember", but if you slip and use the wrong pronouns and i wont take it that you meant offence

JE - Would it be helpful for me to explain how a tribunal panel is put together? In the interests of transparency - the starting point was when the appeal was permitted to proceed by Judge James Tayler 14 July directed it should be heard by a Judge with 2 lay members

Normally the EAT would go to the next name on each of the two lists - employer/employee - to ensure fair distribution of work. Lay members would be told date and name of case to check no obvious conflict

24 Feb 22 I was aware I was going to be hearing the case, i was contacted by the administration to let me know a mistake had been made it had been listed by a judge alone - so i gave an order to ask all of the panel if they were available - email sent out with date and case

Within an hour 2 lay members said they were available 1-2 March. In the end it didn't go ahead because of ill health of counsel. I said it did not have to be the same panel, but the administration kept it with the same panel as there was some reading-in & they were available.

ROD - The appellant Mrs Kristie Higgs - she is a person committed to conservative views on marriage, the family and gender, based on biblical commitments.

She tweeted on how LGBT issues should be taught in schools - a petition.

ROD - she has a deep seated concern about children. She is a mother of two. Thought children faced an existential threat from transgenderist ideology. It was a fundamental concern of hers.

She refused to recant when subjected to a disciplinary hearing. and was dismissed.

The reasoning of the ET was that some people would respond to her tweets by labelling her "homophobic" and "transphobic".

The reasonable bystander might judge Mx Lord as being one of those people labelling her as phobic

ROD - Kristie Higgs and Edward Lord live in different worlds. Their views are fundamentally opposed.

7 grounds of appeal allowed through . At the heart of the matter the boundaries of free speech

ROD ..and whether those boundaries are retracted because some at the. forefront of the transgender movement are offended

The ET found yes they would be offended, and therefore her speech was not protected speech (not an issue to decide today)

ROD - those having deep commitment to the transgender movement would be best served by a finding that Ms Higgs free speech is to be restricted, because her freespeech is perceived as homophobic

I come now to the socio-political background. It is enormously important because of what a reasonable bystander think

1st tweet - Mx Lord opposing Naomi Cunningham, well known barrister, speaking at the Middle Temple.

He does not want to hear what she has to say.

ROD - 2nd tweet - it is clear that Mx Lord is concerned that the government will exclude transgender from education. He is concerned that teachers should accurately reflect that some children might be trans whatever that might mean.

Counsel for the Attorney General interjects - discomfort at Richard o'Dair's use of he and him, when Mx Lord's pronouns are they and them.

JE - Advocates have to treat parties with respect. Advocates sometimes slip on pronouns used. As a female judge you get used to it.

JE - I hear what is said. No difficulty in saying the "Laymember" - perhaps you could be a bit more careful with the language.

ROD - I will, but my intellectual energy should go into stating the case for my client

JE - yes that is why i said, i have sat here for years being referred to by male pronouns and not said a word about it. But it is a fair point.

ROD - "CEL the Lay Member" is upset that TG issues should not be taught in schools. It is precisely that agenda - schools - that the claimant forwarded her tweets.

It is as if we have the front row of two rugby teams coming together. The reasonable bystander would think bias

The Lay Member tweets about a march on Westminister.

The hypothetical bystander might ask - is it appropriate to tweet photographs in a march which is foresquare against what Mrs Higgs stand for

JE: I am assuming these tweets are from 2022?
ROD: I think so but I haven't checked.
The aim of the march was to convince the govt to extend the CT bill to transgender issues - it has implications for children.

ROD - He has the "twitter handle" [sic] #protecttranskids. He is coming from a position totally opposed to the appellant

ROD - RT of tweet by Grey Collier, in support of Mermaids - Mermaids is a well known org promoting transgenderism in schools

ROD - Another Mermaids RT

A tweet applauding the Nursing and Midwifery Council for staying in the Stonewall Diversity Champions scheme.

Clearly opposed to what appellant stands for

ROD - tweet in support of gender self ID.

The appellant believes that sex is fixed at (or before) birth

ROD - a tweet applauding a school for committing the gender agenda - this is what the appellant was arguing against.

ROD - here the lay member calling Professor Kathleen Stock a "trans hater"

Whether she is or not has been considered by Justice Knowles in the case of Miller, who found her to be a "respected academic"

ROD cites the Harry Miller judgement - labelling those with different viewpoints as "transphobic" when they are not.

The labelling of Kathleen Stock as "transphobic" by Edward Lord are hugely important

ROD - Kristie Higgs views are a statement of opposition to the transgender movement. Given what Edward Lord says about Kathleen Stock the reasonable bystander would think that consciously or unconciously the laymember's mind was already made up.

ROD - now turns to Lord's letter "I do not, nor is it suggested that I do, have any association with any party in this current case, although I am a communicant member of the CoE, whose Archbishops’ Council is
the intervenor, & so it is not a matter for automatic disqualification

But he says in a blog post in 2019 (this is the document that Richard o'Dair wants admitted) edwardlord.org/2019/12/24/ove…

"Whilst many people in the United Kingdom profess to hold the Christian faith, most do not attend Church regularly. Those that do, often hold very liberal and inclusive views, although some people still try to use elements of the Bible to sew division in our society"

ROD - who does this refer to ? People like Kristie Higgs.

The lay member has on two occasions given his views on the points taken against him, but has not drawn this document and others to the tribunal's attention

ROD - if his benign mention of the Church of England was all he had said you would be misled.

In fact he thinks some, like the appellant who uses the bible and relies on it to "sew division" in his words.

Sarah Fraser Butlin (SFB) for the Council of Archbishops interjects - the reference is to "people who attend church, not the Church of England"

ROD - The bystander might think there is a real suspicion of bias. If there is any doubt at all then the correct course is to recuse the lay member.

In the case of Page v Lord Chancellor issue raised about whether Art 10 applies. I think this case is very different.

Refers to ECHR case of Baka v Hungary - where a judge lost his job

ROD - Judiciary can be restrained in exercising their freedom of speech when it brings the authority and impartiality of the judiciary into doubt. A big carve out from Art 10.

Recusal of this member would be a proportionate means to a legitimate aim.

ROD - proportionate because It is only recusal, not removal from office.

Summarise - our submission is that the lay member should be removed from case not because of the views but the way they have been expressed

ROD - the intemperate language, apparent disregard of free speech rights of others (Kathleen Stock), going on Marches.

He is entitled to his views. but he does not just have views but life defining commitments, fundamentally opposed to the appellant.

ROD - there is a real potential for bias, conscious or unconscious.

The reasonable person would think there is a strong potential for bias.

- Nothing more -

Sarah Fraser Butlin - the tweets where no reason is given are 2022.

We make no submission on the law.

Those instructing me raised the issue and considered we were under a legal obligation to share the information. We do not take a position.

Now it is Mr Donmar for the Attorney General.
The new evidence - did form part of the new evidence from Sex Matters which you decided would not be of assistance.

On the law -cites Timmons v Gormley on a judge with strong views. The court found it difficult to resolve .

"the broad common sense approach"

The next authority Helow - re whether a judge was pro israeli in an immigration case

publications.parliament.uk/pa/ld200708/ld…

"Had there been anything to indicate that Lady Cosgrove had by word or deed associated herself with these views so as to indicate that they were her views too, I would have had no difficulty in concluding that the test of apparent bias set out in Porter v Magill [2001] UKHL 67;"

"... A fair-minded observer would regard such a judge as too closely and overtly committed to supporting the cause of Israel generally and of Mr Sharon in relation to the Sabra/Shatila massacre."

Cites the Guide to Judicial Conduct judiciary.uk/wp-content/upl…

And on blogging... justice should be done and seen to be done.

Is of a piece with the law in Helaw and Locabail

JE - many of our lay members are members of trades unions which have a campaigning role.

I am aware that there have been issues in the past - equal pay cases - a lay member was involved in a campaign that was directly linked to an issue.

There is that issue for lay members in this tribunal. Is there something I ought to be aware of.

Donmar - the cases are very fact sensitive. Helaw case - membership of an association did not cast bias on the judges part.

Donmar - on the specifics of lay members in the ET or EAT. Efforts are made to obtain a lay member from an employer and an employees side - there is a specific aspect. What the authorities say is that it is factually determined, they set out threshold tests.

One point i need to address because Mx Lord raised it his, er themselves - that the issue might not arise were it raised in relation to other protected characteristics. That a refusal might amount to discrimination.

Any claim of discrimination would require careful pleading. Respectfully scenarios given by Mx Lord are not given in enough detail to decide whether they are materially the same.

e.g. in a case if a question about whether a comment was considered sexist

- if the member had expressed a view that just such a comment was sexist.

That would be a situation that is materially the same.

Donmar - you may consider from the tweets that Mx Lord may have strong views on what amounts to transphobia.

The wider concern is about an unconscious predisposition against the appellant by virtue of the position they both hold.

I don't have much to add.

Donmar - That both Mx Lord and the intervenors identified that there was a question here - the more cautious course is to recuse.

I think submission that he is seeking to silence radical feminists mischaracterises his position insofar as those submissions arise from his position, that he won't allow on his twitter those views or that the LGBTQ+ is not that those views should not be expressed.

Now back to Richard O'Dair (ROD)
Of course lay members should have life experience, but in this case where a lay member is radically opposed to the appellant they should not sit on this case - because a reasonable person would see bias

ROD - It is not discouraging lay members from having interests and being on on the panel. There is no question of Mx Lord being removed from the panel. Simply not on this case

ROD - cites Locabail (UK) Ltd v (1) Bayfield Properties Ltd (1999) - a clear analogy between this case and the views expressed by the member. This is a Locabail type case.

JE - I will be reserving my judgment . Will give it priority and try to get it out as quickly as I can.

[ENDS]