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Nov 21 47 tweets 8 min read Twitter logo Read on Twitter
We will resume shortly in Shahrar Ali vs Green Party et al. Part 1 of the morning session is here:
We resume.
Apologies. Initials for R’s barrister are CC. Was using EM.
J - you were going to respond on the finding of fact question
CC - we assert that Art 11 is engaged and thus any intervention must be considered and justified. Is it reasonable and proportionate, R contends that the aim is legitimate, a less intrusive measure might be used. The rights of the association to govern it's own affairs
would be compromised by the intervention.
CC -this is specifically within the area of belief. It would compromise that ability to appoint, manage and govern spokesperson.
J - it's a general requirement, why should it be limited to belief and not other forms of interference
CC - it is our contention that it is only in the area of belief that this would impact a political party.
J - back to my example of race or disability, wouldn't your logic say no intervention
CC - explains
J - it's the same test but a different outcome because political parties are about belief so it wouldn't be proportionate to intervene.
CC - moving on, referring to legislation, discussion with J about whether first tier courts can read legislation in that way, political parties
can exclude on basis of belief.
CC - in the context of association, sexual orientation, beliefs are excluded. R says there is nothing to suggest that is related to Art 11. Belief not excluded in other areas but is in associations. Adds nothing to proportionality.
CC - moving on to second way in which human rights act (HRA) comes in to this. Referring to Higgs, (cake case) - speaks to rights of party not to hold compelled beliefs or manifest compelled beliefs.
J - I've lost my place.
CC - supplies page ref
(J reading)
CC - if the court were to find in favour of R in reference to policies and process, a finding of discrimination would be compelling belief.
J - its' for the GP to decide what views a spokesperson to put forward
CC - it goes further, to compelled belief.
J - can he tweet not as a spokesperson while a spokesperson
CC - code of conduct applies to all media output
J - does that code apply to others in authority
CC - in authority? Is there a code of conduct for leadership
J - is a leader expected to tweet in accordance
with GP policy.
(takes instruction)
CC - a leader would be expected to tweet in accordance with GP policy.
J - lets' move along. I think I understand the compelled belief part.
CC - 3rd point on HR is about inappropriate manifestation. Is it inappropriate? Need to
consider art 9, 10 & 11 in HRA.
CC - moving on from HRA points. Speaking about liability.
J - any party can only act through agents, when is liability vicarious and when it is not vicarious.
CC - R's position is that it is only liable for actions of GPex.
J - I'm asking a different question. Is all liability vicarious because all activity is through agents or is the GPex the nearest to a controlling mind? Where do I draw the line between vicarious and non-vicarious.
CC - that is a very difficult questions.
(taking instruction)
CC - GPex is the 'heart and mind' of the GP. it would be GPex.
J - when deciding whether .......I've lost my train of thought so I'll stop.
CC - R accepts that liability attaches to those who are acting as agents, but anything beyond that, there is no vicarious liability.
J - if there is no statutory basis, the common law cannot apply.
CC - yes, that's correct
CC - EA does provide for vicarious liability
J - are you saying that vicarious liability never applies
CC - yes that's correct. It's related specifically to members.
CC - member to member arguments are different, for associations (a trade union), rejected vicarious liability.
JJ - rises to clarify non-reliance on vicarious liability
J - so I can ignore that, thank you for that helpful intervention
CC - C responded to a request for further
info, refusing to make declarations of public support, not distributing video statements, removal as spokesperson, as discriminatory. R rejects all of these matters.
CC - refuting an authority of the C's barrister, that the GPex members did not take part in any bullying of R
CC - a point on time limits, it is for C to show that acts extend over a period or to extend time. Whilst C contends that this is a course of conduct extending over a period, the failure to act is treated as occurring when the person questions it, the circumstances are narrow
the failure to act are isolated incidents not part of a course of conduct.
J - the court has discretion in this matter. And C has contended that when he was removed as spokesperson, that was when he looked back and could see that it was a serious matter and a course of conduct.
CC - that is it on the points of law.
J - on matters of fact, I find that broad brush descriptions of what happened are not helpful, what I prefer to refer to are the contemporaneous documents.
CC - can I take instruction?
(does so)
CC - I think I won't trouble YH (Your honour) for very long, the only point I would make is this. There is considerable correspondence between SSMG and MSC after the initial matter. C refers to his 'GC brand" and says he would go on making such statements.
CC conts - despite extensive correspondence and offer of mediation and offer of meeting, he would not meet with them.
J - on that point - lack of reassurances that lead to his dismissal - the tweet from GPex was for what he had done not for what he might do in the future.
CC - the matter was the code of conduct, what the SSMG wanted to discuss with him was communication.
J - is it your case that he was dismissed for a breach of the speakers code of conduct but if he had engaged in a discussion about it, it would have been less severe.
CC - yes
J - I have another question on comparator, I can see that it would more appropriate to use a protected and controversial belief as a comparator.
CC - the comparator must not include the protected characteristic
J - it might be said that it is this particular belief that was
treated in this way.
CC - for purposes of a hypothetical, that is not appropriate.
J - I can see that. We have no further question.
CC - in closing submissions there are a list of detriments that seem to matters of governance.
J - please email me your list.
J - and copy JJ.
(pause while they attempt to sort out the power issues. JJ has sorted).
Turns over to JJ.
JJ - will address some points from MLF submission, some that YH is interested in, but not matters covered in my detailed submission.
JJ - there is a matter of consistency. SA has been consistent in his assertions and the other side has not been consistent in its treatment of SA and its shifting grounds for dismissal.
J - remind me of the late addition of the HRA defence.
JJ - moving straight to Art 11.
JJ - GP allows anyone who accepts their beliefs to join, the objects of the GP are not concerned with trans rights or GC beliefs.
J - remind me of the aims of constitution
JJ - develop policies for a sustainable society
J - so he wasn't tweeting climate denial was he
JJ - if they don't want people with GC beliefs in the party or in leadership, they need to amend their articles.
J - isn't it manifestation of beliefs
JJ - he is not interfering with GP's political rights. 2 cases cited refer to gross interference in rights of membership
J - but GP says that they have the right to decide who their spokesperson is. Returning to example this morning, could the former Home Secretary be found to have been dismissed unfairly.
JJ - protected beliefs are not any belief that any person holds, there are tests to reach
an important threshold. Forstater vs CGD reached that threshold and it won't in all cases. Philosophical beliefs are in the same section as religious beliefs. There is no way to contain this decision to GC; you're excluding a whole section of EA and the court should be very
cautious before it says this entire section does not apply to political parties. For example, it would be appropriate for a party to exclude those with muslim or christian beliefs.
J - your analysis is that most political beliefs are not protected beliefs and there is no
principled basis to distinguish protected secular beliefs from religious beliefs.
JJ - yes that is correct. Sec 13 is a cornerstone of EA on the basis of direct discrimination, for a court to take the serious step of undermining that protection for political parties
JJ - the law is the law, Parliament could look at this case and decide to change the law but it is not for the court to change the law. The R claims that direct discrimination does not apply in this case is a stretch too far. The GP has every right to remove people when it has
used a proper process to do so. Say all they did was tweet all day about GC views and twist every issue to that orientation. The GP would have a right to remove that person on the grounds of unreasonable manifestation. The GP has not produced the evidence in this case.
They have taken a handful of tweets from a particular short period and used to that to build a case for unreasonable manifestation.
R says - The GP are being required to advance a belief that their members don't share.
It is not the case, nothing requires the GP to adopt his
J - I think the point is when he tweets as a spokesperson, he is speaking for the party and advancing that position.
JJ - I will come back to that in more detail. There is an issue on what that means in practice. The GP constitution says that members are allowed
to dissent in specific cases.
JJ - when he is tweeting as a spokesperson - beyond the election period - he does not deviate from the party position.
JJ - what is the reason for SA's removal? That is the question. Why was he subjected to the treatment he was? The SSMG says
he wasn't respecting party policy. Why did they believe that? Because he was manifesting his beliefs. This case is all about manifestation of beliefs.
JJ - the R was asked to supply further evidence about the inappropriate manifestation of his protected belief. The dates
and matters were not drawn to his attention at the time. Well before trial, at an early stage, after the first amended defence came in - SA drafted a series of questions about what was being said about him. If you want to advance a case of inappropriate manifestation it
requires evidence and they have not done that. What they have done is taken the Browne complaint, which is a complaint from a person who by any objective standard is out to get SA, with a handful of selected tweets, with a small and vocal part of the party
that objected to him. It ignores other evidence, his endorsement from the LGBTQ network. There is plenty of evidence that his social media output was polite and respectful. It was not his manifestation of his belief but the others reaction to them.
J - going to the LGBTQ tweets, not exactly a ringing endorsement.
JJ - final says 'would have a voice under him, and would offer him my x preference'.
JJ - it's not what SA says, it's how other people are reacting to what he is saying.
J - but you should take account of
how people respond
JJ - yes and no. You might take account of rational and measured replies. You don't need to take account of wild and unreasonable reactions from a tiny minority of activists.
Court rises for lunch, Back at 2 pm.
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More from @tribunaltweets

Nov 21
Afternoon session, part 1 in Shahrar Ali vs Green Party et al. Earlier coverage of today.
JJ resumes.
The case can be seen through the prism of manifestation of belief. I'm going to deal with the law and some aspects of the facts.
The Court of Appeal had found that there was a genuine and reasonable concern to believe that expression of beliefs would be hurtful.
The case law recognises a distinction between when the reason is the fact of holding a belief and a case where objection could reasonably be taken to the manifestation of the belief. Not all objections are reasonable.
In a specific case of discrimination a human rights org
Read 45 tweets
Nov 21
Good morning. We will be live tweeting submissions (oral arguments) today in Sharar Ali vs Green Party et al. Our previous coverage can be found here:…
Our usual health warning on live reporting on submissions: oral argument is the most difficult form of proceedings to live tweet. We do not have access to written submissions that are frequently referred to. There are frequent references to case law and
Legislation that ranges from the familiar (Forstater vs CGD) to the obscure. Our reporting aims to relay the relevant aspect of the case law rather than repeat the citations. The barristers are usually reading from scripted remarks and often speak quickly and or quietly.
Read 48 tweets
Nov 1
Part 2 thread on the judical review RC v the gender recognition panel re non-binary status.
Abbrevs: J Judge
RC Complainant C
GRP Gender recognition panel
JE Sir James Eadle KC, Counsel for GRP
JE: We do say the Joubert case will assist this case - even though the no Art 3 claim has ever been mounted at any stage but it does stray beyond the bounds of proper assistance and into advocacy. The basic purpose of that document
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Read 30 tweets
Nov 1
We are about to join the afternoon session of the judical review RC v the gender recognition panel re non-binary status.

J Judge
RC Complainant C
GRP Gender recognition panel
JE Sir James Eadle KC, Counsel for GRP
J Further requests for remote access and will develop a schedule. Want to emphasise re not recording if attending remotely. Certain reference to the explanatory notes and wld be helpful to have a note on this

JE On legis backdrop, correct that GRA was after Goodwin and Bellinger
JE was a remedy. Is an area of legis policy covered by small and cautious legis steps, telling strongly against parliament making quite a large step eg various types of gender. So the conception re how the GRA works and use words in their legis context
Read 51 tweets
Nov 1
CB: we know that New Zealand accepts NB markers since 2005 so it was possible the it was on governments rader in 2004. If they didn't see NB does this undermine my interpretation?
[apologies missed some of this - references to cloning of embryos]
CB: question on whether this is covered by act turns on whether they are covered by genus of act. HOL (House of Lords) was authoritative on that point.
CB: Lord Bingham says the principal operates in same way re cloning of dogs. HOL says cloned embryo is same as other embryos even though cloning was not around when act was made. We say that even though NB wasn't mentioned at the time, it is still covered by same genus of the Act
Read 38 tweets
Nov 1
Good morning. Today we shall be tweeting the application for Judicial Review brought by a US citizen Ryan Castellucci against the Gender Recognition Panel. We expect the hearing to begin at 10.30 am.
Our substack page on the case is here:…
RC = Ryan Castellucci, bringing the application
GRP = Gender Recognition Panel
Read 66 tweets

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