Discrimination, belief and the “fundamental party rights”: the judgment in Ali v Green Party of England and Wales

News

9 Feb

The County Court has given judgment in Ali v Green Party of England and Wales [Central London County Court, 9 February 2024]. For the first time, the court had to consider the interaction between the Equality Act 2010 association provisions, the protected characteristic of belief, and the rights of political parties and their members under the European Convention on Human Rights. The decision will be of great interest to political parties and campaigners of all kinds.

Background

This matter comes against the backdrop of a series of claims brought in the Employment Tribunal by claimants with beliefs commonly described as “gender critical”. Those with gender critical beliefs hold, in summary, that biological sex is immutable and distinct from gender identity, and that conflating the two concepts risks harming women and eroding their rights. Since 2021, gender critical beliefs have been a protected characteristic under the Equality Act 2010 (the EqA). This case differed from other gender critical cases, however, in that the Claimant claimed not under the employment provisions of the EqA but under the separate provisions for membership associations. These claims are brought in the county court. Importantly, whilst the discrimination provisions of the EqA apply in this context, the harassment provisions (s.26) do not apply insofar as religion and belief and sexual orientation are concerned.

The Claimant was, until early 2022, the Green Party’s spokesperson on policing and domestic safety, a position roughly equivalent to that of shadow justice minister. When the Green Party removed him from that position, he claimed that it had done so because of his gender critical beliefs and that it had accordingly discriminated against him. He also claimed in respect of various other alleged instances of less favourable treatment, namely: criticisms made against him by Green Party members, representatives and local branches (chiefly that he was transphobic); alleged attempts by members to campaign to remove him from his position; and alleged failures by the Green Party sufficiently to publicise his appointment or to offer him proper exposure as a spokesperson.

The Green Party defended the claim on the basis that they had not subjected the Claimant to discrimination; that he had breached party policy (which the party said was broadly pro-trans rights); and that, in interpreting the EqA, the court should take into account the Green Party and its members rights under Articles 9 10 and particularly 11 – meaning that the EqA could not be interpreted so as to permit the court to interfere with the Green Party’s affairs in the way in which the Claimant argued – particularly in relation to its decisions as to spokespeople but also in the way in which it conducts its affairs as a political party.

Decision

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 Green 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. 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 Alie 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(10 rights by obliging them to manifest a belief which they did not hold” (243).

This finding was based on the interaction between the EqA and the Human Rights Act 1998. HHJ Hellman considered the meaning of Articles 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 [see para 206].

HHJ Hellman went on to hold 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.

Dr Ali was awarded £9100 for injury to feelings.

Comment

This decision has significant ramifications for political parties, their belief policies and the way in which they are permitted to conduct their internal proceedings in respect of those with protected beliefs. It is important to note that had there been access to harassment provisions, as there are in the context of employment cases, the court may have had to deal with a further difficult question of the impact of free speech and the limitations presented by domestic harassment law on the exercise of free speech. Employer organisations, of course, will continue to need to consider free speech and harassment.

Construing “detriment” in the way the court did in this context [para 207] was a plainly permissible interpretation, bearing in mind that the concept of “detriment” in this context encompasses only what a reasonable person would regard as a detriment. In essence the judge finds that a reasonable person would not consider that allowing a party to exercise its fundamental rights would be a detriment.

The Green Party was represented by Catherine Casserley, instructed by Mindy Jhittay at Bates Wells.