The Judgment in the case of Shahrar Ali versus the Green Party

The legal case Shahrar Ali, former deputy leader of the Green Party and previously Green Party candidate for Brent Central, brought against the Green Party resulted in a judgment today. In papers submitted to the court, lawyers acting for Dr Ali claim that officials in the Green Party "collaborated" to remove him from his post  as spokesperson on policing and public safety because of his beliefs about gender, which include the view that "biology is real and immutable". 

The judgment found that Shahrar Ali was discriminated against procedurally in an unfair way because of his protected beliefs but did not find in his favour in other aspects of the case. He was awarded £9,100 in damages. Costs will be decided later.

 

Outside the court Ali said:

 

I see this as my gift to the Green Part y and wider politics, particularly in the left, where there has been an extraordinary toxicity preventing us from speaking freely.

 

Parties are not beyond the law when it comes to seeking to discipline their representatives in accordance with their own rules for alleged misconduct

 

He called for the  Equality and Human Rights Commission to investigate the Green Party over how it handles trans rights debates.

 

The Chair of the Green Party executive, Jon Nott, said: 

 

We are pleased that the court has recognised that a democratic political party has the right to select those who speak for it on the basis that they can and will communicate and support party policy publicly.  

We welcome the findings in the judgment that members of political parties have ‘fundamental party rights’ which include the right to disagree, to advocate for and against policies and positions adopted or proposed in the party, and to organise for those who agree with them and against those who do not, and that the Equality Act is not intended to interfere with those rights. 

 

The party acknowledges that there were procedural shortfalls in how we deselected one of our spokespeople. We apologise for failing in this instance to live up to the standards that both we and the court expect.

 

 Both sides of the case claimed to have won aspects of the case. I can't post the 61 page judgment for space reasons but here are their statements.

 

didlaw who acted for Shahrar Ali said:

 

didlaw is delighted to announce the successful judgment for its client Dr Shahrar Ali in his discrimination claims against the Green Party of England & Wales. 

 

Dr Ali pursued discrimination claims against the Green Party on the basis that he was subjected to a co-ordinated campaign by the Party to see him removed as a Party spokesperson, because of his gender critical beliefs. These beliefs, that sex is real and immutable are protected under section 10 of the Equality Act 2010. 

 

It was Dr Ali’s case that when the Party Executive Committee failed to secure enough votes to remove him as Spokesperson at a meeting in June 2021, a new process was devised so as to ensure he was removed. In October 2021, a newly formed Spokesperson Support and Monitoring Group asked Dr Ali to address concerns about ‘trans rights’. Unbeknown to Dr Ali, one of the Group’s key aims was to censure him. 

 

On 5 February 2022 a majority of the Party’s Executive voted to remove Dr Ali from his Spokesperson role. The Party did not formally inform him of the removal and nor was he provided with any specific reason for the removal save for a public announcement made on Twitter which alleged that he had breached the Spokespeople Code of Conduct. 

 

In a 61-page judgment HHJ Hellman clearly describes the treatment of Dr Ali’s case and upholds his claim that the Green Party Executive Committee, by removing Dr Ali from his role of Spokesperson in a procedurally unfair way, ‘discriminated against Dr Ali because of his protected belief contrary to section 101 of the Equality Act.’ 

The judgment concludes ‘I have upheld in part Dr Ali’s claim that he was unlawfully discriminated against’ and states ‘Dr Ali also seeks a declaration that he has been subjected to unlawful discrimination. I grant the declaration sought, although it does not obviate the need for damages.’ In addition to a declaration of unlawful discrimination Dr Ali has also been awarded £9,100 as an award for injury to feelings. 

 

This is a landmark case and the first protected belief case against a political party. It is also the first case in which the court has had to consider the protection of those with gender critical beliefs in a political party. The key factor for consideration in any protected belief case is the balance between the reasonable manifestation of a belief and the limitations imposed by Articles 9 and 10 of the ECHR in the context in which those beliefs are expressed. This is a tricky balancing act. One thing is clear, the Equality Act 2010 and the obligation to protect members from discrimination applies to all political parties. 

 

Bates Well who acted for the Green Party said:

 

The County Court has given judgment in the case of Ali v representatives of the Green Party of England and Wales. In doing so, it has set out novel and timely principles on the interaction between the prohibition on discrimination by associations in the Equality Act 2010 and the fundamental rights of members of political parties under the European Convention on Human Rights, in a decision which will be of great interest to political parties and campaigners of all kinds.

 

Giving judgment, HHJ Hellman agreed with the Claimant on one matter: that his removal had been procedurally unfair, and that he could not rule out the possibility (which had been the Party’s to disprove) that this procedural unfairness had been due to the Claimant’s protected beliefs. To that limited extent, the Claimant had been discriminated against. He was awarded £9,100 for injury to feelings. However, HHJ Hellman was careful to specify that it is explicitly not discriminatory for a political party merely to remove a spokesperson on the grounds of (in this case, gender critical) belief, provided it follows a fair procedure in doing so. He stated “The Green Party could not, in any event, have been compelled to maintain Dr Ali as a spokesperson if (outside of a party election period) he expressed beliefs that were inconsistent with Party policy, or if they reasonably concluded that he would do so, as this would infringe their article 9(1) rights by obliging them to manifest a belief which they did not hold” (243).

 

The reason for this finding concerned the interaction between the EqA and the Human Rights Act 1998, which incorporates the ECHR into domestic law. HHJ Hellman considered the meaning of three articles of the ECHR: Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association). Taken together, he held that these Articles guarantee (amongst other things) the rights of members of political parties to:

• advocate for or against policies and positions adopted or proposed to be adopted by their party;
• criticise the beliefs or conduct of other members which are inconsistent with the policies and positions they advocate, including using language which their opponents might find offensive; and
• advocate and organise within the party in support of members who support their favoured policies and positions and against members who do not.  
  

 

Importantly, HHJ Hellman held that these rights, which he termed “fundamental party rights”, are so core to democratic society that Parliament cannot have intended to restrict them under the prohibition in the EqA against discrimination by associations. Section 101 of the EqA, which contains the prohibition on discriminatory “detriment”, must therefore be construed to exclude the exercise of those rights, as any curtailment of these rights pursuant to s.101 could not be justified in accordance with Higgs [see 207]. Several of the claims made by the Claimant were dismissed on this ground.

 

The remainder of the Claimants’ complaints were also dismissed in their entirety. Some of them were made out of time, and concerned events so clearly separate from the later events complained of that they could not constitute a ‘single act’. Others related to the Party’s local branches, separate organisations within the Party such as the Young Greens, or candidates in internal Party elections; the Claimant failed to establish that those named had been acting as agents of the Party.

 

Commentary

It is now beyond dispute that those with gender critical beliefs enjoy protection under the Equality Act. While those beliefs are protected, however, the issues with which they are concerned are a long way from being uncontentious. Rather, they remain a matter of heated and ill-tempered political debate, not least within political parties themselves. This claim effectively asked the court to direct a political party as to how to conduct that debate. It is to be welcomed that the court would not do so.

 

The principles established in this judgment mean that political parties remain free to debate these and other issues, even in terms which might be considered offensive. If this debate rubs up against protected beliefs, then so be it: some degree of discrimination on the grounds of belief is part of the essence of democratic politics; indeed, as HHJ Hellman observed, every five years voters perpetrate “an act of mass direct discrimination against other persons on grounds of the protected characteristic of belief” simply by voting in a general election.

 

Where key role-holders are being appointed or removed, parties should bear in mind the court’s warning that it will not infringe the fundamental party rights to hold them to requirements of procedural fairness. Provided those requirements are met, however, the field of political debate remains an area into which the courts will not easily be led.