Thread by @nickwallis

I am at Killymeal House in Belfast awaiting the resumption of Morrison v Belfast Film Festival.

We were due to start at 1.30pm with BFF CEO Michele Devlin resuming her evidence, BUT I UNDERSTAND ANOTHER RECUSAL APPLICATION HAS BEEN FILED.

That's all I know right now. More...

... Central Whitley Equal Opportunities Committee. The HQ Official and Group Chairperson met with the NICS LGBT Diversity Champion on 6 October 2016 and raised issued around...

... the sequencing of questions, language, methodology, outcomes and the importance of including a TUS representative on the proposed staff network. The survey was...

... adjusted accordingly and issued to staff in December. Other activities included NIPSA representation on the NIC/ICTU LGB&T Committee, the Rainbow Project Consultation Forum and the Trans Forum."

"Similar material appears in the 2017 and 2018 annual reports. It is not balanced by any acknowledgment that the rights of women may be engaged when men who...

... say they are women are given permission to use women’s spaces, nor that those with sex-realist or gender-critical beliefs may have protection or may themselves be...

... a group vulnerable to discrimination. The latter may be less surprising before the judgment of the Employment Appeal Tribunal in Forstater v CGD Europe Limited [2022] ICR 1...

; but even now a search of NIPSA’s website returns no hits for the expressions “gender critical” or “sex-based rights”."

"Unlike the judge whose recusal was sought in Helow, Mr McKeown was not a mere member of NIPSA; he was a member of the trade union’s General Council from 2009 to 2017, and already described as a “leading trade unionist”...

... with the same union in the context of his 2014 novel The Blue Room. Unlike the articles relied on in support of the recusal application in Helow, the material relied on in support of this application forms part of the...

... official position of the trade union throughout the time during which Mr McKeown served as a member of its General Council."

"It is submitted that Mr McKeown’s leading role in a trade union that did during the currency of his role (and has ever since) taken a trans-activist campaigning position..."

"... is on its own sufficient to cause the fair-minded and informed observer to conclude that there was a real possibility of bias. That conclusion is supported by two further matters...

"First, even after the recusal application of Friday 14 November and Professor Boyd’s consequent recusal, Mr McKeown did not raise the matter of his role with NIPSA and its campaigning position on the debate at the heart of this case..."

"The second matter is the fair-minded and informed observer’s awareness of the context, in the form of the unusually polarised and polarising nature of this particular debate...

... Against that backdrop of such a bitterly-fought controversy, the fair-minded observer must be particularly careful to avoid the complacency against which Lord Hope warns at par 2 of Helow"

"In the circumstances, Mr McKeown is respectfully invited to recuse himself, failing which the judge is invited to take the decision in any event that he must be recused. Subject to the Respondent’s written consent, the Claimant asks the judge to hear the case sitting alone."

The Respondent (the Belfast Film Festival) says in response to the Recusal application:
"In the application the Claimant has instructed her legal representatives to make, it is suggested that:

"'NIPSA has since at least 2015 been actively and uncritically supportive of gender identity ideology and thus necessarily hostile to the sex-realist/gender-critical viewpoint'..."

"The contention on behalf of the Claimant is therefore that if you hold a political opinion, someone who holds a diametrically opposed opinion will necessarily be hostile to you...

... That is simply untrue. Many people can disagree on political matters and not be hostile to those with whom they disagree...

... A fair-minded observer would not come to the conclusion that hostility towards each other is the necessary outworking of holding differing political opinions."

"The logic of the Claimant's argument, if extended to other cases, would mean that a panel member who holds unionist political opinions could not sit on a Fair Employment Tribunal...

... panel in a case brought by someone who supports the unification of Ireland. That is patently absurd."

"The suggestion that Mr McKeown shares the views of the Union he is seconded to, and therefore the apparent assertion that NIPSA is an organisation wherein all members and...

... staff share the same political opinions isn't grounded in fact. Indeed, NIPSA have previously been criticised by this Tribunal on that basis that "the tribunal does not exist to provide a public forum...

... for the periodic ventilation of obscure and internecine disputes within Nipsa" (see Fleck & Mackel v NIPSA 43/15FET & 1503 IT)"

"A fair-minded observer would understand that, to borrow the words of Mr Cousins [Mark Cousins - a respondent witness], Trade Unions are broad churches. Nowhere in the Claimant's submissions is there any evidence that Mr McKeown...

... Is hostile to sex realist views; or has publicly expressed any personal view on transgender issues.

To suggest that he is responsible for NIPSA policies on gender issues also demonstrates a lack of understanding of...

... how Trade Unions operate. No single person forms policy. Ordinarily there is a relevant subcommittee that will suggest policy after investigations and debate or policy can be formed or influenced by votes at a union's...

... conference that can be proposed by individual branches. The Respondent understands that NIPSA has a LGBTQ sub-committee that likely would have been responsible for policy. The Respondent is aware of no evidence that shows that Mr McKeown as a member of that sub-committee...

... the Respondent asserts this application has failed to demonstrate that the fair-minded and informed observer would have thought that there was real possibility of bias."

The Respondent then moves on to the request from the Claimant that if Mr McKeown is recused, the judge sits alone.

"the Tribunal is required to adhere to the rules as set out within the Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020. Rule 53 states...

... final hearings shall be conducted by a tribunal comprising an employment judge and either one or two other members, in accordance with regulation...

"⁠The use of the word shall denotes a mandatory requirement. It is not open to the parties to agree to opt out of that requirement. This case cannot therefore proceed in front of the Employment Judge alone if this application is granted."

ENDS

Please note the extracts above are not the complete application nor response. There is a submission in reply to the response which we have not yet seen as it hasn't been given to us. I have requested it.

It is coming.

We have it - C says R "misunderstands the Claimant's submissions. Her contention is not that Mr Mckeown shares the view of the Union or that all members or officers share the same political opinions; there is no...

"evidence of either. Her contention is that as a very senior and long-standing officer of the Union, the fair-minded and informed observer would reasonably fear that Mr McKeown...

... might be swayed by loyalty to the Union’s officially-endorsed positions, which was the conclusion arrived at by the EAT in Higgs v Farmor’s School."

On to the contention that the judge cannot sit alone:

"the relevant provisions are as follows. Article 6(1) of the Its(NI) Order 1996 provides: “(1) Subject to the following provisions of this Article... proceedings before an...

... industrial tribunal shall be heard by (a) the person who, in accordance with regulations made under Article 3(1), is the chairman, and...

... (b) two other members, or (with the consent of the parties) one other member…"

"Paragraphs (2) and (3) provide for certain kinds of proceedings to be heard by a chairman (now employment judge) alone...

... That list does not expressly include [employment tribunal] claims, but it does include at par 3(d) “proceedings in which the parties...

... have given their written consent to the proceedings being heard in accordance with paragraph (2)”."

"The Respondent relies on the version of Rule 53 of the IT and [employment tribunal] Rules in force until 1 December 2024. That rule now provides..."

"“Subject to Article 6(2) and (3) of the Industrial Tribunals Order and to paragraph (2), final hearings shall be conducted by a tribunal comprising an employment judge sitting alone or an employment judge and either one or two other members, in accordance with regulation 10.”"

"Since that is expressly subject to Article 6(2) and (3) of the Industrial Tribunals Order relied on by the Claimant, it offers no impediment to the Judge hearing the case alone, provided the Respondent consents."

"It follows that although the Respondent has, in effect, a veto over the Claimant’s proposal that the judge should continue to hear the case alone, the judge has the power...

... to take that course with the written consent of the parties. The Clamaint consents, so if the recusal application is granted, whether the case is able to be completed this week is...

... for the Respondent to decide."

ENDS

So there we are. We await the ruling, which is imminent...

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We have been told ruling will now be made at 3pm.

So in summary - the claimant would like panel member to step down due to his prominence within NIPSA, a pro-trans trade union. The Claimant would like the judge to sit alone going forward.

Actually that's clumsily expressed. the claimant would like panel member to step down due to his prominence within NIPSA which is a union which appears to have picked a side in the gender "debate" which is hostile to hers.

The respondent says this is nonsense. He has never expressed a public view of the matter and is perfectly capable of putting it aside as a panel member and judging the case on the facts.

There is also a disagreement on whether the judge can sit alone. R says no. C says yes with R's consent, if the recusal happens.

More arrival pix from earlier today. Sara Morrison (C) on the left with some of her legal team

Some supporters of Sara Morrison.

Respondent's barrister Sean Doherty

Judge is sitting. Explaining the recusal application. Premised on following info - that from 2009 - 2017 MM was employed by a council and seconded to the NIPSA union and that he held a senior and key rol in the union. Because of his membership and pos in the union...

... he has apparent bias. This application is rejected by the respondent in its entirety.
Both parties have provided useful case law [gives examples in the application and response]

It's a legal "real possibility" of apparent bias and if there was doubt is should be resolved in favour of recusal.

J - tribunals are creatures of statute. We need a J a rep of C and a rep of R. The idea is it will lead to a balanced outcome for all parties.

MM was no an employee of a central whitley council. He was employed by NI civil service. He was seconded to whitely council. His salary was at all times paid by the civil service. He was a member of NIPSA..

... and individuals are free to take whatever view they like, they don't have to be the same as NIPSAs.
NIPSA policy will be made by LGBTQ subcommittee which MM has never been part of. He's never done any work in this area. He has never been involved in any campaigning.

J C also says MM might be swayed by loyalty to the Union. He retired some time ago. Taking all this to account, the arguments and case law, that we have not been persuaded there is a case for recusal...

... - not been a member of the union since 2018
- not involved in the authoring of any trans policies inc those which post date his membership
- membership of a union does not imply endorsement of its policies

[we are now cracking on with Michele Devlin (MD)'s cross-examination (xe) by Sara Morrison (SM & C)'s counsel Naomi Cunningham (NC)]

NC takes MD to 3 July tweet sent by Queerspace which notices SM's involvement in email sent to LGBTQ groups and replies with hostility. You sent your response late on 4 July, which suggests you'd put thought into it
MD yes

NC and your response is about SM isn't it
MD no I don't accept that
NC it is about SM and your support for LGBTQ against her
MD no

NC takes her to R response to the claim - that an investigation started on 5 July - it follows that the decision to make an investigation on 4 or 5 July
MD I don't recall
NC must it not follow it began then
MD I don't know I'd need to look back at the emails

NC you're not willing to accept... oh I don't need to pursue that
[she moves on]
NC look at par 25 of your Witness Statement (WS)
"Ultimately, after consulting with the Chairs of the Board [ref to 11 July email] we took the decision to
postpone the Pride on the Big Screen event."

NC so the cancellation took place after 11 July.
MD mm-hmm
[NC trying to pin down when the decision was taken to commence investigation]
[MD is not sure it was after 11 July]

NC takes her back to her WS where it says Think People were engaged on 5 July to investigate concerns from stakeholders.
MD mm-hmm
NC that seems to be saying that in response to the outcry on 4 July which came after your email on 3 July

MD we were already working with Think People (TP)
NC on and investigation
MD no for payroll stuff
NC can you recall anything more about your 28 June phone meeting
MD it was to see if anyone senior was available to oversee the process
NC which process

MD the grievance process
NC it can't be that because that came later
MD to see if anyone was around in the next month because we might need them
NC you are deliberately trying to blur the chronology here - you are trying to pretend the investigation did not begin until after 11 July when it began on the 5th

MD no I don't accept that
[NC takes her to the fine line email]
NC what did you mean by fine line
MD it's self explanatory
NC could you explain it anyway
MD do I have to
J Ms D, the tribunal does need to understand what you mean

MD I kind of suspected that there would be some kind of process coming out of this
NC I put it to you that you were already gearing up to push towards disc proceedings
MD I don't accept that.

[Fine line msg (it's not an email): "She maintains she is not trans phobic. Her comments at the rally were about freedom of speech and "letting women speak".
We are treading a fine line - re Employment law
I have been working on that f-ing statement all day
with HR people / lawyers / chair/s"

Msg was to Laurence McKeown, BFF board member who replies: "I can imagine Michele"

[we are now looking at Ruth McCarthy from Outburst Arts/Michele Devlin's email chain from 4 - 7 July after the 3 July email]
MD I was protecting our reputation
NC after the damage done by SM?
MD no - just protecting our rep
NC you hadn't collaborated with BFF since 2011

MD no
NC in fact, collaborating was tricky wasn't it because of the relationship between you and Outburst wasn't it
MD no
NC you and Ruth McCarthy were both made directors of Outburst on the same day in 2010 and you haven't worked with them since 2011 because after that you got into a relationship with and subsequently married RM's partner

[big intervention on relevance from Sean Doherty (SD), R's barrister - NC pushes back and is allowed to ask]
MD I am not married to RM's former partner... we live together
NC so there was no real way you were going to ever work with Outburst Arts
MD no I'm a professional

[we move to MD wearing a "trans-inclusional feminist" t-shirt at pride at end July 2023]
NC so that's a feminist
MD absolutely
NC who believes men can be women
MD we did these verbal gymnastics earlier
NC if you're a trans inclusional feminist then it should include trans women

MD and trans men
NC and that's the opposite side of the debate from those who think men can't be women.
MD no I don't accept that it's more complex
NC you are aligned with the idea of refusing to accept men who think they are women can be lesbians and thinking so is bigotry

MD no I'm not
NC and that men can compete in women's sports
SD this is not relevant
MD I wore that t-shirt because the theme of the tribunal was "stand by your trans"
NC but what does that mean
MD it's very complex

MD I can and do discuss this, but if we talked about it here we could talk about it all day
NC okay if you can't say what it is, do you agree it's contentious
MD yes
NC do you agree with most people's view - as expressed by Mark Cousins - that most people hold GC views

MD possibly
NC so should the BFF discipline you for taking a political position which is alien to most peoples' in Belfast
MD but there were no complaints
NC so if there were complaints should you be disc or dismissed

MD but SM wasn't disc or dismissed
NC leave that to one side
MD it's a very important fact!
NC let's try one more time. If there had been a pile on on you for expressing views which some people think are homophobic and misogynist should you be dismissed?
MD what's this got to...

... with homophobia and misogyny
SD what's the question here
NC should there have been an investigation by TP into you if there were a pile on
MD I'd be happy for anyone to investigate... if you look at SM's crowdfunder there was abuse. I was called a "bastard"

NC if there's anything you wish to say outside of my q's to you I am sure SD will put them to you under re-examination.

[MD says she needs a break]
[Long discussion about whether this can go to 5.30pm - it gets knocked around and is eventually put to MD as a choice. She says she'd prefer to come back tomorrow. J agrees and MD (unless there are any more applications) will finish her evidence...

... tomorrow. J says we'll start at 10am.]

Forgive me I forgot to post the warning earlier. NONE of the above is verbatim unless it is in "direct quotes". And I don't think any of it is. It is just a summary and characterisation of what was said in court.

I am going to go and write this up as a newsletter. As per higher up in this tweet thread, if you want to receive it, pls consider a small one-off donation and you'll get every newsletter I do on gender in your email inbox going forward.

Have a good evening!

End of 🧵

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