Thread by @tribunaltweets

Afternoon session, part 1 in Shahrar Ali vs Green Party et al. Earlier coverage of today.

https://twitter.com/tribunaltweets/status/1726928729430172059

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

brought a case against a company which had said they would not hire immigrants. That was discrimination.
In the Higgs case, the point is if the response to SA's posts is of itself tainted by discrimination, arise from a hatred of those with GC beliefs...

that is akin to not hiring immigrants because customers don't like them.
Therefore if a minority group of activists who dislike GC beliefs and call them terfs, transphobes, don't engage with the argument, but rather engage in wholesale abuse, that is why the GP runs scared of

them, because of this tendency to abuse.
J - do we have any idea how many trans positive people are in the GP
JJ - there are 2 separate groups; those reasonable people who are trans positive and engage in mature debate, and that small vocal minority that resorts to allegations

of transphobia and discriminations.
J - playing devil's advocate, just calling someone transphobic doesn't mean it's a term of abuse
JJ - calling someone a transphobe is like calling someone anti-semitic or a racist or a homophobe.
The GP has not called in SA and interrogated

him on his beliefs and concluded 'yes, you're a transphobe and we're going to dismiss you'
J - just because it's not well found, does that mean it's abuse
JJ - we come back to is it justified, is it reasonable, is it proportionate.
Coming back to my opening submission

There are many organisation that kowtow to these activists....
J - its not the reasonableness of the remarks but its in the response of the GP to the remarks.
JJ - coming back to the periods I identified of social media and GP activity. Coming to Period 1

JJ - from start of May/June 2021 and we ask the question 'what was the reason for SA's treatment in that period'. It's our submission that the GP produced no evidence of any manifestation in that period. All that exists then was his belief. GP members saying 'he can't be

doing this job if he has those beliefs';
J - but they knew about his beliefs from previous comments
JJ - but they have not produced any manifestation of his beliefs in the relevant period that they have relied upon.
J - but there must have been manifestation

JJ - but they must produce evidence of the inappropriate manifestation of beliefs.
JJ - coming on Period 2, it was the leadership election, it is political speech that deserves the highest protection,
J - you called it political speech but all his speech in his political speech

JJ - in this period because he was in a leadership contest, he asking to clarify the position on trans rights, it is exactly what a leadership candidate should be doing. That's important because it would be quite wrong to sanction someone during that period or subsequently

sanction them for what they said during that period because it will have a chilling effect on anyone who stands for leadership because they will be concerned about what they said.
J - the GP said 'we dismissed him because of breaches of the speakers code on the other hand

we didn't consider his tweets during the leadership contest'. Are those statements consistent?
JJ - no they are wholly inconsistent, their only evidence is tweets from this period of the leadership contest.
J - moving ahead to a different issue, the two motions from local

GP and YG, do those motions go beyond political speech?
JJ - they are attempting to sanction him for his beliefs, they are not debating his beliefs they are trying to remove
J - but don't they have the right to act on their beliefs
JJ - There's a difference between engaging in

argument and attempting to remove someone solely for their protected belief
J - isn't an organised attempt to try and remove people protected speech,
JJ - that's fair and that political, but its different when they are attempting to remove people for their protected belief

JJ - that's going beyond expressing beliefs or engaging with his arguments,
J - if the motion had referred to GC beliefs instead of transphobia, that wouldn't have cured it
JJ - no, it's the right to say things, to believe them, to manifest them.
In this context it's not just

the disagreement, it's the desire to remove his from his role.
J - if you have a party with two distinct factions, one could not seek to remove the other side for a difference in belief.
JJ - those in the GP and in parts of society, they are subjected to attacks solely because

of those beliefs.
J - I'm trying to explore how this operates in politics.
JJ - it's not just a political belief.
J - but doesn't it become a political belief?
JJ - it's a fundamental belief, not a political one.
J - you could have a consistent political philosophy

or two different sets of belief that run up against each other and come into conflict.
JJ - the EA and the HRA give broad protections in this area, we think it's not appropriate for the court to try and carve out political speech and shelter it here. We think it is more

reasonable to go through the checklist: is it a protected belief, was it reasonably manifested, was he discriminated against.
JJ - using the Home Secretary as a thinly veiled example, we don't have the evidence on that case. In most cases you will have clear evidence who

where someone traduces a trans member of the GP, that would be clear, it would be unreasonable manifestation and the person should be removed. We don't have that in this case. They haven't produced the offensive manifestation.
JJ - now going on the Period 3.

From post leadership election onwards. He produced a report on what he did, his activity, his social media output, there was no evidence of unreasonable manifestation of his beliefs.
Once we get through all that, we get to proportionality. He was removed from his role.

He was never told clearly what was inappropriate, he was never warned and told to discontinue specific activities, he was not warned, no specificity and they fail on justification.
Moving on from manifestation to vicarious liability.

JJ - the GP has no independent legal personality, everyone is an agent.
J - is the consequence that everyone is an agent
JJ - the point is that it is accepted that they are liable for the actions of GPex, and when members of GPex are acting as agents. The principle is liable

*Principal is liable whenever the agent is discriminatory.
Citing examples of Browne and Berry.
Not addressing in great deal because it's in my written argument.
JJ - going on to the comparator point.

J - give me a minute to read
JJ - discussion of hypothetical comparator, there is nothing in this point, it is not necessary in every case to construct a hypothetical comparator. Having grappled with an artificial comparator, it is frequently so artificial

(directing J & L to specific paras to read)
JJ - a very good authority that the court doesn't need to engage in this artificial exercise, so this is the discussion earlier that it is about the belief itself. This is crystal clear.
Brings me to my next point.

Touching on evidence, some critical documents; our theme is that some of the party were consistent with trying to get SA out because of that belief. It had nothing to do with unreasonable manifestation.
We see right at the beginning SB questioning the process.

JJ - they know what they're talking about. Seeking to unpick his appointment from the very beginning.
JJ - referring to various messages in WhatsApp and other chats.
JJ - the next important document is the GPex minutes, reading out snippets from the minutes of June 2021

JJ - this encapsulates the conflict between members stance on this matter.
(referring to documents we have not seen hard to grasp points he is making other than they relate to the attempts to remove SA without manifestation of his beliefs)
JJ - another example of where a

process designed to remove SA is spilling over into general processes (referring to MB's paper and his correspondence with MSC).
JJ - we see the complete lack of respect for MSC from MB, this is a coordinator for GPex who is dominating this debate and bullying MSC

and he's just a coordinator, bullying a professor and GPex member.
Then the SSMG recommendation, this is the reason given for the recommendation for suspension 'the SSMG has received a number of criticisms about SA's performance as a spokesperson, but because he was championing

what was said to be a highly controversial position. Nothing about breaching the code of conduct or unreasonable manifestation.
Now on to notes in prep of GPex meeting, he (MB)
proposes that they agree to remove SA, rather than the suspension suggested by SSMG.

JJ - finally
J - just help me, this refers to what
JJ - a note from MB to GPex members, MB is a moving force here
(J reading)
J - the SSMG had recommended suspension, MB is suggesting removal on his own initiative.
JJ - yes, overreaching the decision of the SSMG.

JJ - quoting from MB paper, 'highly controversial comments on social media' but recommendation from SSMG relies on MB report, that looks back over leadership election, no reference to breaches of the code.
J - can you help me, I seem to recall that SA had been advised that

he should not be saying certain things on social media.
JJ - the SSMG then refused to hear his defence at the meeting in October.
JJ - finally moving on to time, omissions can be part of a continuing course of conduct,
J - is it fair to say, that the core detriments are

the process leading up to SA's dismissal as a spokesperson.
JJ - yes, that is the core of it, the actions of the group of MB, SB and the manipulation of the SSMG process.
Those are my submissions.
J - CC, I have a specific point I'd like you to address. The GP cannot

J - If the GP can dismiss SA from his position because of his GC beliefs than they can dismiss him because he is a Muslim can't they.
CC - the characteristics are separate, religion or belief.
J - but on what's in the statute or in case law I'm struggling with the distinction

J - if we dismiss you because you believe that Jesus Christ is the son of God, is that an area where the court could intervene.
CC - it would have to meet the Grainger test.
J - we haven't looked at Grainger have we
CC - no, it's not in the authorities.
J - if you could send

that to me with the other materials you promised.
JJ - it's extensively cited in Forstater vs CGD, gives reference.
J - thank you.
CC - any belief has to meet the Grainger test, if not justifiable would it fall under the threshold. (repeats self)

J - it seems to me a powerful point, I will go away and read Grainger. n
J - do you want to say anything else on the law (to CC)
CC - on the point of a comparator, it needs thought,
J - it may or may not be helpful in this case
CC - I don't think there's anything else, may I have

a moment.
J - JJ, do you want to address me on Grainger
JJ - MLF's response is not sufficient. Religious belief is a philosophical belief and so is protected.
J - judgement is reserved, you will have a written judgement in due course.
Court rises.

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