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.

 

 

BREAKING: Supreme Court ruling today should help campaigners fighting for protection of green spaces

From Good Law Project

 

The Supreme Court today ruled in favour of a Good Law Project-funded case which will help to protect green spaces from being sold off where there is opposition from local communities. The ruling sets a new precedent for how public green spaces are sold by local authorities in the future. 

Greenfields Community Group, led by campaigner Dr Peter Day, in Shropshire, has been fighting for almost six years over the land, arguing that Shrewsbury Town Council should have consulted residents before selling off the green space.  

Last June, Shrewsbury Town Council apologised "unreservedly" over the sale of part of Greenfields Recreation Ground and promised to buy the land back. The council was instructed by its lawyers not to buy it back until the Supreme Court judgment.

The campaigners will now hold the council to account over its pledge so that the local community can once again use the space for recreation.

In handing down the ruling, Lady Justice Rose said:

It is our view that [Shrewsbury TC] must put robust procedures in place to ensure that an oversight such as this is not permitted to recur. Where there should be any future sale of land [Shrewsbury TC] must be able to demonstrate that [it] has taken sufficient steps to establish the legal status of that land and act in accordance with all relevant legislation prior to sale. [Shrewsbury TC] should consider whether it has the legal power to proceed with any future disposals and, for the sake of good governance, should formally document the powers on which it has relied when making any such decisions.

Legal Manager of Good Law Project, Ian Browne, said:

We are delighted with today’s Supreme Court ruling which will set a precedent to help safeguard green spaces across the country from being sold off and the rights of communities to enjoy them for generations to come.

Shrewsbury Town Council failed to consult the local community about the selling off of the land and it has led to a protracted legal battle which should not have been necessary in the first place.
 

We are thrilled to have backed the tenacious efforts of Greenfields Community Group and Dr Peter Day to secure this landmark judgment, which means that Shrewsbury Town Council will now have to meet very strict criteria before they are able to sell off any green spaces in future.

Many allotments likely to be at risk after Farm Terrace court judgment

Goodbye Farm Terrace

A four year battle LINK to save the Farm Lane allotments in Watford from development ended last week when a judge found against the campaigners. BBC London News showed an 80 year old man weeping in despair at the loss of his beloved allotments.

As campaigner Sara-Jane Trebar explains below the judgment that said that 'exceptional circumstances'  allowed the Borough Council to take over the site, could have wider implications for allotment holders across the country:

Unfortunately our fight to save our allotment site and protect others has ended.

We the Farm Terrace allotment holders are bitterly disappointed that the Judge did not find for our case against the government and Watford Borough Council.

This has been a very long, very emotional battle for us. We feel that at very stage where we have won the rules have been changed to make it increasingly difficult for us. 

This judgement is in our view, is a developers charter for development on any allotment site and could wipe out urban allotments forever. We are extremely worried about the ramifications of this case for all allotments. We still believe that the remits of ‘Exceptional Circumstances’ have still not been clarified nor explained. If there is no bench mark for what is an exceptional circumstance. We feel the term can and will be applied to get rid of many other plots and sites.

There is evidence almost weekly of sites losing land to development or like us losing their whole site.

We are very frightened about the future of urban allotments, unfortunately as our case has shown, they can now be offered as a ‘blank cheque’ to cash hungry developers and councils. Farm Terrace plots are and always have been in demand. This point was not questioned in court and yet permission to dispose of it was given. Watford Borough council have now been given the opportunity to do whatever they want with this land, be it a car park, expensive housing or yet more flats.

After consulting with our loyal legal team, we have come to the very difficult decision not to appeal against this decision. This is the end of the road for us. We have got to give up the keys to Farm terrace on Friday the 4th. Give up keys to plots that are still being worked, still growing fruit and vegetables and still very much loved so that bulldozers can move in. Needless to say it is heartbreaking. 

We would like to take this opportunity to thank all our supporters near and far and of course our prestigious legal team, who could not have worked harder for us or for the protection of all allotments. We now leave the defence and protection on England’s Allotment sites to the National Allotment Society who we hope will work hard to safeguard other sites.

We could not be prouder of ourselves and our supporters who have battled so tirelessly against this immoral and illogical act. We feel we have done ourselves proud. It is a very sad day for everyone involved.

We would like to thank everyone at the National Allotment Society who have supported us over the past 4 years, particularly allotment holders and sites up and down the country. We also now leave the Society to take forward the issues raised in the judgement for the sake of all allotment sites in the country.

I have now closed donations to the gofundme account.

We would like to thank all those who donated to our crowd funding site, no matter how little or large an amount you helped us take this fight as far as we could and we remain thankful for that opportunity.

Cara Davani and Christine Gilbert – Brent’s cover-up continues (or, another Deputation that the Council would not hear!)

Guest blog by Philip Grant

“Wembley Matters” readers may be interested to know what happened at Brent’s Scrutiny Committee meeting this evening (Thursday 30 April). 

Before it started, I was treated to the sight of Cllr. Butt sitting next to Cara Davani (Director of HR and Administration), laughing and joking with her, and pointing me out as the person who had come to present a Deputation about Equalities and HR. I don’t know why the Council Leader was there, except perhaps to impress on the committee members sitting opposite him that Ms Davani was under his protection, so they had better not do anything that might annoy her.

The Chair, Cllr. Aslam Choudry, soon got on to the question of the Deputation from Phil Grant, and said that there was a matter to sort out before I presented it. He asked for my agreement that if I were allowed to speak, I should not refer to any individual legal cases, as Brent’s Chief Legal Officer had advised me earlier in the day. 

I replied that I could not accept this restriction, for the reasons I had set out in an email sent to all of his committee members, and copied to the Legal Officer, some hours ago, which had not been answered. The legal case I wished to refer to was the one which Cllr Pavey’s review had been set up, as Christine Gilbert (interim Chief Executive, and also present) had announced last September, to learn the lessons from that case. As one of the points I wished to make was that an important lesson had not been learned, and both of the points required reference to the case in order to explain the reasons for what I wanted to say about the draft Action Plan, which Scrutiny Committee was being asked to give its views on, that case was relevant to committee’s consideration, and could not be ignored.

There was some further discussion with the senior Brent Lawyer, Arnold Meagher, at the meeting, who said that as the case involved had not been fully concluded, I should not be allowed to refer to it. I responded, saying that I would only be referring to “findings of fact” from the judgment in the case, and that judgment was final as it was no longer under appeal. I could not see how any reference to that part of the case would prejudice the position of any party to the remaining “remedy” hearing, at which the compensation award would be decided. I don’t think that this point was ever answered by Mr Meagher.

Cllr. Choudry said that he would discuss with his committee whether they should allow me to speak, as I would not accept the condition he had set out. There was a rather disjointed “discussion”, with several members of the committee speaking, but I could not follow what they were saying because they forgot to turn their microphones on. It seemed to be about the Legal Officer saying that I could not refer to the legal case I wanted to, but whether they viewed this as legal advice, or a legal instruction to the committee, was unclear. It appeared that the Chair was about to ask the committee to vote on the matter (which under Brent’s Standing Order 69(a)(i) he should have done, with only a simple majority being required to allow a Deputation to be received), but after further mumbled discussions Cllr. Choudry announced that I would not be allowed to present my Deputation, and moved on to the next item on the agenda.

Before leaving the meeting, I handed out the dozen printed copies of my Deputation I had taken with me to members of the public, co-opted members of the committee and other councillors present who wanted them, and I am setting out the text of what I would have said below, for anyone who wishes to read it.

Deputation to Scrutiny Committee on 30 April, in respect of item 9:
Cllr. Pavey’s Equalities and HR Policies and Practices Review and draft Action Plan.

I am speaking as an individual, but am aware that many local people, including Council employees and some Brent councillors, share the concerns I am raising.

In September 2014 an Employment Tribunal gave a judgment against Brent Council and its Director of HR, Cara Davani, finding that a former employee had suffered racial discrimination, victimisation and had been constructively dismissed.

Cllr. Pavey’s review of Equalities and HR policies and practices was set up ‘to ensure that we learn lessons from this case’. In the foreword to his review he says:

‘Policies are mostly sound. But policies are implemented by people and we need to do more to ensure that they are consistently applied.’

What Cllr. Pavey could not say, because his review’s terms of reference did not allow him to actually consider the Rosemarie Clarke case, was that an important lesson which should be learned is that even the best HR policies and practices are of little use if they are ignored by the officers who are supposed to follow them.

As an example, in guidance issued by Brent’s HR Director you can find statements like: ‘bullying and harassment will not be tolerated’. Rosemarie Clarke had raised a grievance against Cara Davani, because she felt she was being bullied and harassed by her. This led to a succession of acts of victimisation against her, recorded as findings of fact by the Tribunal, such as in para. 302 of the judgment:

‘'The tribunal is satisfied that the action of Ms Davani in seeking the claimant's suspension when she did, was a direct consequence of the claimant having raised a grievance against her. The tribunal finds that the claimant was thereby victimised.'

There were other findings of fact by the Tribunal about total failures to follow HR policies, which provided evidence of Brent’s constructive dismissal of Ms Clarke. Para. 176 of the judgment says:

'The tribunal finds that, from the correspondence from Ms Gilbert on 21 February, addressing the claimant's grievance of 18 February, so as to conclude and dispense with the grievance, this was not in accordance with the first respondent's [Brent’s] procedure and a breach of contract.'

If the Senior Officers responsible for such findings ignore Brent’s HR policies, what example is that setting to the Council’s other staff? The Action Plan is totally undermined, because why should managers bother to put the policies into practice, when those at the top ignore them and get away with it? Even if disciplinary action was taken against more junior staff for policy breaches, they could argue at any hearing that it would be unfair to penalise them, when no action was taken against Brent’s Director of HR for far worse misconduct.

Scrutiny Committee may wish to ask Ms Davani why she did not do the honourable thing, and resign, following the findings of fact in the Rosemarie Clarke case. It may also wish to ask Ms Gilbert why she did not institute disciplinary proceedings against Ms Davani when she failed to resign. If, having heard anything those Officers wish to say, committee members agree that the Equalities and HR Action Plan cannot move forward with Cara Davani still at Brent Council, I hope they will not be afraid to say so.

The second point I would ask Scrutiny Committee to consider is at Section 2 of the draft Action Plan [see page 5 of Appendix 2].  This has been prepared by Cara Davani, and is entitled ‘Achieving Excellence in Employment Policies’. 

I am deeply concerned at one of the “success criteria” which she proposes. This reads: 

‘Number of employment tribunals is low against benchmarked councils (benchmarks TBA) and ET cases are successfully defended.’

It is the second part of this that I find most worrying. “Success”, according to Ms Davani, should be measured by successfully defending Employment Tribunal cases. The risk of setting such a “target” is that it might encourage Council staff involved in these cases to fabricate or falsify the evidence that they give. 

As an example, in the Rosemarie Clarke case, a key factor in the finding of ‘racial discrimination’ against Brent Council was the decision to continue disciplinary proceedings against her after she had ceased to be a Council employee. In Para. 240 of the judgment it says:

‘With regards to the decision being taken to pursue disciplinary action against the claimant [Ms Clarke], following the termination of her employment, the respondents [Brent Council and Cara Davani] have been unable to state by whom or when that decision was made.’

As there would have been very few Council employees who could have made that decision, and at least some of those were witnesses at the Tribunal, this totally undermined the credibility of the Council’s evidence.

Scrutiny Committee may wish to ask Ms Davani and Ms Gilbert to tell them who did make that decision, and why. The stain of the ‘racial discrimination’ verdict against Brent Council cannot be removed, nor the Action Plan succeed, until a full and honest answer is given.

“Success” over Employment Tribunals is having none, and to achieve this I would recommend that the “criteria” should be: 

100% of managers honour in practice the core value set out in Cllr. Pavey’s review:
‘Every Brent Council employee deserves to be treated with dignity and respect.’ 

Thank you.

Philip Grant
30 April 2015.

Note from Martin Francis: Readers may be interested in seeing the Scrutiny Committee in action discussing whether Philip Grant should be heard. Unfortunately most councillors did not switch on their microphones so the public could not hear what was being said. Muhammed Butt is sitting with Cara Davani in the right hand corner of the horse shoe.

 

We need a different, supportive & conciliatory working culture at Brent Council

I have received many comments about the Empoyment Tribunal Judgment on Brent Council and Cara Davani,  This one I thought was worth publishing separaely as it gives a different, contextual view:

First the good stuff. Before Cara Davani arrived Human Resources in Brent was not fit-for-purpose. The few staff that were under-performing or not contributing could not be tackled by managers due to inadequate policies and procedures and HR advisors who were risk adverse, without realising the damaging impact that this was having on front-line services. CD did not do all the work, and cannot take all the credit, but be in no doubt whatsoever that under her leadership HR changed and is now fit-for-purpose, helping managers to build performing teams, establishing a modern flexible, service-first (not staff-first) culture. Without CD this would not have happened. She deserves enormous credit for this. As they saying goes, you can't make an omelette without breaking eggs.

I cannot definitively tell, but from what I have seen, CD is not a racist or prejudiced. Nevertheless, since Gareth Daniels left, the number of BME staff working in the top three tiers of managers, has unhelpfully plummeted - going down to just one at one stage. This era appeared to involve the recruitment of a number of people that had worked with the new senior officer leadership for previous employers. Perhaps this is a more benign reason for the reduction in BME senior managers?

CD's private website states that she is in a relationship with the Council's Senior Employment lawyer. Some worry that this might influence advice given and action taken. it would be a disciplined relationship indeed if both never talked informally about staff employment matters before formal employment advice is given on the same cases.

However, it is the case that many senior managers are wary of CD, the CEX and Leader. They all seem to come to quick judgements about people's careers based on small issues. CDs email in the Judgement that expressed her disappointed that a colleague did not say hello to her, is pretty typical. All three seem to have a view that managers that pre-date their coming to power 2 or 3 years ago, are somehow inferior and in many cases must go (and have gone). There has been a very strong centralisation of power, with even relatively senior managers no longer being authorised to make fairly mundane decisions. This engenders a sense that senior leaders, mistrust staff and junior managers to take those decisions, and culture of fear if small things like not saying hello, help build their view of you as an employee.

The coming year will be brutal, as heavy Government austerity cuts are implemented. This will hit services much harder than previously, as many of the softer options have already happened. Many more staff will lose their jobs in the next 18 months, and this further builds a culture of fear.

Be clear, Brent Council needed the shake-up, which Gareth Daniels launched, and CD played a big part in delivering. But it is now a brutal place to work, where expectations of staff - despite their being far fewer - is unhealthy and unreasonably high. We now need to move forward with a different supportive, conciliatory and team-building culture.