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

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.

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. 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 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 unfavourable treatment, namely: criticisms made against him by 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 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 rights of the Green Party and its members under the European Convention on Human Rights (ECHR) – meaning that the EqA could not be interpreted so as to permit the court to interfere in the way in which the Claimant sought – 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 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.

Bates Wells acted for the Defendant, who was represented by Catherine Casserley of Cloisters Chambers.