Thread by @nickwallis

Hello and welcome to Day 5 of Morrison v BFF at Belfast Employment Tribunal. High drama - we're about to get a recusal application. Thread of live tweets follows.

This was what happened earlier today. V serious stuff.

https://x.com/nickwallis/status/1989304222450348395?s=20

A recusal application means asking the judge, a panel member or the entire bench to stand down from the trial. The tribunal grinds to a halt and must be rescheduled with a new panel. No one knows the alleged grounds for recusal outside the legal teams. We're about to find out.

I've reported a recusal application before. They are quite rare. This was a big one - when the Post Office tried to remove Mr Justice Fraser from the Bates v Post Office litigation.

postofficetrial.com/2019/03/horizo…

More to read on the Post Office recusal application whilst you're waiting:

Reaction to the application:
postofficetrial.com/2019/03/je-rec…

Report from the hearing (Grabiner v Fraser, toe-to-toe)
postofficetrial.com/2019/04/bates-…

Fraser's refusal to recusal:
postofficetrial.com/2019/04/bates-…

And the Court of Appeal's endorsement of Fraser's decision, calling the Post Office's application "without substance", "misconceived", "fatally flawed", "untenable" and "absurd":
postofficetrial.com/2019/05/j-fras…

Let's see what the tribunal makes of Morrison's application in this case.

Court sitting
Naomi Cunningham (NC): Application to recuse ENTIRE PANEL on basis of apparent bias and one panel member on the basis of actual bias. Fair minded and informed observer would conclude there is a real possibility the panel is bias. Not a probability. Real possibility

NC Panel member Professor Boyd is one accused of actual bias.
Deborah Boyd is a former director of the Enterprising Women's Network - which is a part of the Women's Regional Consortium. The email address of the WRC is [e-mail] - and wrda as I am sure you will recall...

.. was copied into the 3 July email which reignited the social media storm and was one of th groups mentioned by C in the LWS event.
J and Enterprising Women network is part of that
NC yes
J how do you reach that conclusion?

NC so the directory shows that EW is part of WRC
J okay just joining up the dots. Right
NC and if you go to p13 the NI women's manifesto - Women's Regional Consortium, so that's hosted by them this is their document. On p23 of that document that the NI Women's Manifesto - NIWM takes an expansive approach to what the word woman means - under the heading transgender women it says [essentially] that trans women are women and makes various demands.
NC So Prof Boyd is associated with an org which has a very firm alignment with a view adverse to the claimants. That in itself ought to have given rise to a disclosure by Prof Boyd and the C should have been allowed to make the application. and if that had been done and that was the only reason for making the application, the C might have not had a problem, but there is that connection - and that is one piece of evidence. The second piece of evidence is that Prof Boyd did not draw it to the attn of both parties is separate and concerning. It's also the case that if you look at the pages at the back of this bundle - Prof Boyd is associated with Pride and LGBT activism.

NC now some of these are fairly old and some from before the alignment of T with LGB and it might have been that you can say alignment with Pride is not necessarily an alignment nec with trans ideology, but not all of it is pre-T. Again - that in itself might not be sufficient on its own, but...

... during the evidence there was a precipitous break when I first used the phrase "men who say they're women". V soon after that there was some whispered comms between Professor Boyd and you judge and PB left the room at such speed that tho she was furthest from the door she was the first out.

NC and when that happened one of the journalists came to me and said that if there were an objection to NC's use of language he would wish to be heard on that. That didn't happen. We don't know but we surmise that there was a conversation about my use of language.

NC we say that even if PB's strong views were not known to the panel then you and the panel then knew and we say at that point, if that happened, it was incumbent on you to recuse her or advise her to recuse herself.
NC finally - for a foreign academic PB has a strikingly low

... online profile. We don't know her specialism. We think steps may have been taken to reduce her online presence making it more difficult to make an application of this order.
NC finally on Monday anonymity and restriction orders were made. That was dealt with in chambers.

NC it was mooted by the claimant and not opposed by the respondent. That order was made and on Tuesday morning you asked if the restrictive reporting order was nec - C did reconsider and allowed the anonymity order, not just restriction

NC your doubts about enforceability did not make any sense. It's not the tribunal's job. the assumption was notices would would be sufficient. as a rule, people obey with court orders. That was a puzzle and an inexplicable feature of what happened on Tuesday. It was also odd to...

... make an order unopposed and then seek to change it without an application. The strong suspicion in this side of this room is that the order as drawn used correct sex pronouns for her son. By some means the extent of fury using correct sex pronouns for a man who identifies as female by trans rights activists had somehow been brought home to you, and part of the reason for that suspicion arose from your demeanour which was "almost pleading" the claimant to take down the notices. C took the view that we would be practical about this and we agreed to the order being adjusted. But we now think there are good grounds to infer there would be TRA fury in response to a tribunal order correctly sexing a TiM, using pronouns related to his sex rather than his preferred pronouns. We infer that this was brought home to you by PB when she learned about the terms in which the order had been made. One final piece of evidence - the question of the revised anonymity order has been allowed to stay. Nor has the tribunal proposed one. We didn't propose one because we understood it was its use of correct sex pronouns, but that doesn't account for the tribunal's desire to let the matter slip.

NC we say that should it be redrafted it would bring the issue of pronouns into sharp focus. We say there are grounds to fear actual bias of PB due to her apparent alignment with the GI theory side of the debate.

But also that the full panel should recuse itself because the surrounding circs give rise to an appearance of apparent bias because the full panel must be aware of PB's compromised position so on that basis I ask the full panel to recuse themselves
J why ask now not on Mon - Wed or yesterday

NC because we have only been able to put this together. The material in bundle only came before us this morning. We are obviously extremely reluctant to make this. Because if it is refused it will inevitably make the party who made it unpopular with the tribunal
"It's an extraordinarilty serious step" to make the application. We had concerns...

... earlier, but it was not compelling until now. But it does not need to be compelling. Just a real possibility.
J - SD?
SD this is an absolutely staggering app - I have never heard the likes of it. If we were not already on Day 5 - the C's case is that she was silenced by people...

... making incorrect assumptions about her views and her we have a recusal application based on wild assumptions. It is staggering that no authorities have been presented. No case law. There is the fair-minded informed observer would think. This app alleges actual bias. No authorities on this...

I am waiting on authorities to be sent down. May I obtain the authorities so you are properly guided on the legal test. If it is granted there are serious consequences for everyone in this room and therefore the decision...

... should be made fully informed of the authorities. May I have a ten minute break to get the authorities.
J given R wasn't informed last night and the court wasn't informed until quarter past 11 this morning about the application I am minded to grant this. Do you have...

... any objections NC.
NC no and if SD wants longer that's fine if it's okay with you
J okay...
SD perhaps quarter past?
J okay quarter past 2

[Sheesh....]

Whilst we're waiting. If you're new to all this, here is an interview with the Claimant, Sara Morrison. This is, obviously, her side of the story.

genderblog.net/sara-morrison-…

I also wrote a shorter version for the Times six days ago: thetimes.com/uk/law/article…

BBC Northern Ireland has been here all week covering the story admirably.

J returns to court
SD goes to NI CoA relating to a coroner refusing to recuse himself in a particular inquest. Asks J to go to par 36: In Re Medicaments (No. 2) [2001] 1WLR 700, 711 at [37] the Court of Appeal held: "Bias is an attitude of mind which prevents a judge from making an objective determination of the issues that he..."“[37] Bias is an attitude of mind which prevents the judge
from making an objective determination of the issues that he
has to resolve. A judge may be biased because he has reason
to prefer one outcome of the case to another. He may be
biased because he has reason to favour one party rather than
the other. He may be biased not in favour of one outcome of
the dispute but because of a prejudice in favour of or against
a particular witness which prevents an impartial assessment
of the evidence of that witness. Bias can come in many
forms. It may consist of irrational prejudice or arise from
particular circumstances which, for logical reasons, pre-
dispose a judge towards a particular view of the evidence or
issues before him.

[38] The decided cases draw a distinction between “actual
bias” and “apparent bias.” The phrase “actual bias” has not
been used with great precision and has been applied to the
situation (1) where a judge has been influenced by partiality
or prejudice in reaching his decision and (2) where it has
been demonstrated that a judge is actually prejudiced in
favour of or against a party. “Apparent bias” describes a situation where circumstances exist which give rise to a
reasonable apprehension that a judge may have been, or may
be biased."

[40] In Helow v Secretary of State for the Home Department [2008] UKHL 62, the House of
Lords gave further consideration to the “apparent bias” test in Porter v Magill. In Helow,
the appellant was a Palestinian who challenged the involvement of the judge in the case
because of the judge’s association with pro-Jewish lobby organisations. It was alleged
that there was an appearance of bias. Elaborating on the attributes of a fair-minded and
informed observer, Lord Hope stated at para 2:
“The observer who is fair-minded is the sort of person who
always reserves judgement on every point until she has seen
and fully understood both sides of the argument. She is not
unduly sensitive or suspicious, as Kirby J observed in
Johnson v Johnson (2000) 201 CLR 488, 509, paragraph 53.
Her approach must not be confused with that of the person
who has brought the complaint. The "real possibility" test
ensures that there is this measure of detachment. ……. But
she is not complacent either. She knows that fairness
requires that a judge must be, and must be seen to be,
unbiased. She knows that judges, like anybody else, have
their weaknesses. She will not shrink from the conclusion, if
it can be justified objectively, that things that they have said
or done or associations that they have formed may make it
difficult for them to judge the case before them impartially.”
[our emphasis]

It's here btw: judiciaryni.uk/files/judiciar…

[55] As the authorities make plain the steps in the requisite analysis are that the court
(i) must ascertain all the circumstances which have a bearing on the suggestion that the
tribunal was biased and (ii) it must ask itself whether those circumstances would lead a
fair-minded and informed observer to conclude that there was a real possibility that the
tribunal was biased.

[42] In Lewis v Redcar and Cleveland [2009] 1WLR 83, the court of appeal provided
guidance as to the approach to be adopted in cases involving apparent bias and
predetermination as a form of bias. All three members of the court of appeal delivered
written judgments. Pill, LJ reviewed a number of the authorities delivered since the
decision in Porter v Magill. With regard to the Porter v Magill test and the correct
approach of the court to the possibility of predetermination, Pill LJ stated as follows:
“68. … Where reference was made to the fair-minded
observer, the court was putting itself in the shoes of that
observer and making its own assessment of the real
possibility of predetermination. That, I respectfully agree, is
the appropriate approach in these circumstances. The court
with its expertise, must take on responsibility of deciding
whether there is a real risk that minds were closed.”

[43] In Lewis, Rex LJ agreed with Pill LJ’s assessment. He also considered the
distinction between disposition and predetermination and considered the test to be
applied for distinguishing between the two:
“89. It is common ground that in the present planning
context a distinction has to be made between mere
disposition, which is legitimate, and the predetermination
which comes with a closed mind which is illegitimate.
However, there is a dispute between the parties as to the
appropriate test to be applied for finding the illegitimate
closed mind.”

[44] The competing tests were (1) actual bias or predetermination:- 'a closed mind in
fact’ and (2) a test based on ‘the appearance of things. (In other words, the Porter v
Magill test): would it appear to the fair-minded and informed observer that there is a
serious possibility of the relevant bias, viz predetermination?” [emphasis added].
Rex LJ favoured the latter - the test based on the appearance of things:
“96. So, the test would be whether there is an appearance
of predetermination in the sense of a mind closed to the
planning merits of the decision in question. Evidence of
political affiliation or of the adoption of policies towards the
planning proposal would not for these purposes by itself
amount to an appearance of the real possibility of

predetermination or what counts as bias for these purposes.
Something more is required, something which goes to the
appearance of a predetermined closed mind in the decision
making itself. I think that Collins J put it well in R (Island
Farm Development Limited) v Bridgend County Borough
Council [2007] LGR 60 when he said at paragraphs 31-32:
“31. The reality is that councillors must be
trusted to abide by the rules which the law lays
down, namely that, whatever their views, they
must approach their decision-making with an
open mind in the sense that they must have regard
to all material conditions and be prepared to
change their views if persuaded that they should
… unless there is positive evidence to show that
there was indeed a closed mind, I do not think
that prior observations or apparent favouring of a
particular decision will be suffice to persuade a
court to quash the decision.

SD takes J to par 45: "On this distinction between ‘predisposition’ and ‘predetermination’, Longmore
LJ stated:
“106. It is clear from the authorities that the fact that
members of a local planning authority are "predisposed"
towards a particular outcome is not objectionable see e.g.R v Amber Valley District Council, Ex Parte Jackson [1985] 1
WLR 298. …..
107. What is objectionable, however, is “predetermination”
in the sense I have already stated, namely that a relevant
decision-maker made up his or her mind finally at too early a
stage.”

SD this application is made on the flimsiest of evidence there are a few selective screenshots from the social media profiles Professor Boyd in which she endorses Pride and frankly so what. She is perfectly entitled to. There is a laughable allegation that PB has scrubbed her

social media profile

PB's background is in waste management and a basic understanding of what an Enterprising Women's Network does is probably promoting women in business - how that is objectionable I have no idea. Then without any evidence whatsoever there is a suggestion without any evidence whatsover thta you became aware
"that is an outrageous attack on the integrity of this tribunal" there is no evidence whatsoever to support it. i leave it to you to make your mind up as to whether that is correct. You can deal with that. we then have the next theory about the RRO and that somehow the panel became spooked by the use of correct sex pronouns. I leave it to you to decide how far wide of the net that one was. I am quite certain it is laughably wide. No fair minded observer can say that there is a real risk of bias. There's no evidence that PB did any work with the WRDA. All we know is that one stage is that she was a director of EWN - a commendable thing, I would suggest, rather than something that should draw crit. "R apps are rare but I have to say I have never heard one so rare, so based on conspiracy theory, so clearly based on supposition." Clearly the C wants a second bite of the cherry on this case. you should dismiss it. "It's contemptible and rises nowhere near the level required by the authorities for recusal." Unless there's anything further you'd like me to address judge...
J thank you SD - NC? Rebuttal?
NC yes

NC [goes to same authority] what is strikingly diff about these circs and that case is there's something more that is requisite. she cites par 42 from Lewis "In Lewis v Redcar and Cleveland [2009] 1WLR 83, the court of appeal provided
guidance as to the approach to be adopted in cases involving apparent bias and
predetermination as a form of bias. All three members of the court of appeal delivered
written judgments. Pill, LJ reviewed a number of the authorities delivered since the
decision in Porter v Magill. With regard to the Porter v Magill test and the correct
approach of the court to the possibility of predetermination, Pill LJ stated as follows: “68. … Where reference was made to the fair-minded
observer, the court was putting itself in the shoes of that
observer and making its own assessment of the real
possibility of predetermination. That, I respectfully agree, is
the appropriate approach in these circumstances. The court
with its expertise, must take on responsibility of deciding
whether there is a real risk that minds were closed.”

NC there has been a significant difference in the treatment of our xes approaching the substance of the debate between trans activism and sex realism - worst by a long way was the scurrilous and wholly erroneous suggestion that she had acted in a blatantly...

.. transphobic manner - put to the claimant and then added to the case at the last moment purely to prejudice her in the tribunal's mind. The other thing is that bias is not about fairness to parties it's about public confidence in the fairness of justice.

NC [goes back to Boyd's agitation and departure earlier this week] suggests this might give the appearance of bias to the journalist who approached us and possibly others
SD's suggestion that we want a second bite of the cherry and would do anything to "crack this hearing"

SD doesn't make sense - quite apart from the cost and delay - the C's case has been going strikingly well. The idea we would do that when things have been going "swimmingly" so far, that goes very close to an allegation of misconduct on behalf of the claimant's legal team

and should not have been made in these circs.

[J and panel rises to consider the application]

Apols that closing par three tweets up was obvs made by NC not SD

and - apologies for doing this belatedly: EVERYTHING I HAVE WRITTEN TODAY IN BOTH TWEET THREADS IS A SUMMARY OR CHARACTERISATION OF WHAT WAS BEING SAID. NOTHING IS A DIRECT QUOTE UNLESS IT IS IN "DIRECT QUOTES"

I think I got most of what NC said as she was speaking particularly slowly, but you must not trust any of it as verbatim unless it is in direct quotes.

J has returned. New application?
NC not an application. additional info. a note.
J I don't have it - do you have it SD?
SD no, but if the claimant wants to put lipstick on this pig of an application...

J there's a way of doing things here - you can't just keep adding things - but I'll let you do it
NC there wasn't any other way of us doing it as it wasn't in our hands until a minute ago
NC it is a handwritten note by a journalist who was in the room on tuesday which was...

... emailed to my instructing solicitor.
NC for complete transparency it had been round the houses - Dr Elves and I saw it before my instructing solicitor did. It was given to you us 40 mins ago. It reads:

"NC [Naomi Cunningham] means TWAW means RCC has men women's spaces
D [Michele Devlin] yes
Prof Sarah [sic] Boyd to J "can we rise for a second I have a concern"
STAND
SIT 11.20
J list of issues, length of case... taxpayers money"

J and the point of this?
NC that some observers in this room, some of whom may be fair-minded and informed and we say that explains or could explain why you rose and the impression that was given - it is further detail in the story and a piece of information in the mind of the fair-minded observer
J - SD?
SD the fact that a panel member said I have a concern can we rise - you know what you discussed we are not entitled to know for now what you said so you can deal with it. but this journalist is an activist too. so not sure how fairminded that observer is. I say it doesn't take this application any further.

[J and panel rises till not before 4pm]

Okay I think I've got the right Northern Ireland Women's Manifesto on Northern Ireland for the General Election of 2019. It is supported on the cover by Transgender NI and the Women's Resource and Development Agency.

Part of the recusal case was that panel member Prof Boyd (PB) is a former director of Enterprising Women's Network (EWN) which is part of the Women's Regional Consortium (WRC). The WRC is part of the Women's Resource and Development Agency (WRDA) which is a sponsor of the...

... above document. WRDA is one of the groups the Claimant "called out" in her speech at Let Women Speak on 16 April 2023. Inside the Manifesto is a commitment to "Transgender Women". It says:

"We believe that transgender women are women, and deserve access to the same human rights and
services as all other members of our society. High rates of hate crime, alongside hostility in our political
culture and our media, have led to worsening conditions for trans women across the UK. This hostility
is rooted in misogyny and patriarchy - addressing it will have benefits for all women, and ensure
freedom of expression and identity for all.
We call upon the elected representatives to:
 Reform the Gender Recognition Act to be based on self-declaration of gender and to provide
accessible pathways to legal gender change for non-binary individuals and trans people under
the age of 18.
 Ensure access to timely transition-related-healthcare interventions for trans women and trans
people of all genders.
 Reform gender affirming healthcare provision to depathologise trans identities in line with
WHO’s ICD11 and the WPATH standards of care, creating a model that works for NI based on
global best practice and human rights.
 Undertake a review of trans people’s ability to access mainstream healthcare services
 Develop meaningful strategies to tackle rising transphobic hate crime and abuse.
 Ensure the provision of relationships and sexuality education which includes and affirms trans
bodies, experiences and identities, while providing useful information on sexual health and
wellbeing in every school in Northern Ireland."

The argument appears to be that a group (EWN) which is part of a consortium (WRC) which sits within the WRDA which sponsored the 2019 Manifesto is a supporter of trans ideology. And that a former director of that group (EWN) is on the panel.

And the Claimant, spoke out against that women's umbrella group (WRDA) for supporting men in women's single-sex spaces.

And so the panel member has ACTUAL bias by being a former director of this group which is under this wider umbrella of groups supporting self-id etc.
And by not drawing this to the judge and claimant's attention at the beginning of the tribunal, that is another example of bias.

And then there are the other things as listed. In the tweets above.

Will do the recusal application hearing decision in a new thread.

Just to add the Respondent (as I hope has been clear from the above) has been clear that this is a "laughable" application made on the "flimsiest of evidence" and is "an outrageous attack on the integrity of this tribunal".

[thread ends]