Well, that happened...
Hello all, Good lord. What a day. The draaaaaama darling. Where to start? First things first. I am at Belfast City Airport hoping against hope I'll get to bash out this newsletter before my flight so I'm not having to do it on the plane, trains and automobile which are currently between me and a glass of wine on my sofa at home. For anyone who has just stumbled in here, the case I have been covering at Belfast Employment Tribunal this week is Morrison v Belfast Film Festival (BFF). If you haven't read it yet and would like some background you can read an interview with the claimant, Sara Morrison, here. We were scheduled to begin at 11.30am today, which was nice. I got to clear out of my lodgings and give a few quotes on the journalistic failures of the BBC to Ros Unwin, who has a piece coming out in this weekend's Sunday Times. By the time I trundled up to court I was feeling energised and ready to go. Chatting to some of the early arrivals, I picked up a rumour that proceedings might not start until 2pm. Rumours are obviously not particularly trustworthy, but 11.30am was rapidly approaching and there didn't seem to be much going on. Everyone made their own decisions about what to do. I confess I relaxed. I got chatting in the car park with a man from the TUV (Traditional Unionist Voice) who seems to be taking an elliptical interest in this case. He started filling me in on the political scene here in Northern Ireland, including why Jolene Bunting is such a divisive figure. My limited understanding of Northern Irish politics comes from a good friend I have over here who is an Irishman working in IT. My new acquaintance gave me a step level perspective. He took me for a coffee near the IVF mural I posted a picture of in an earlier newsletter but I started getting twitchy being so far from court and took my leave. As soon as I walked back into the building, at 12.05pm, I was told to get into court immediately. I arrived as the Judge entered. She was, in the local vernacular, "ragin'".
The Preliminary The Belfast Film Festival's legal team were sitting on their side of the court. On Sara Morrison's side, her barristers, Naomi Cunningham and Dr Charlotte Elves were not present. Morrison's solicitor Simon Chambers was perched alone on their side of the room. Employment Judge Lisa Sturgeon gave him both barrels. How dare Morrison's team send her an email informing her that they were not ready to start until 2pm. It was for the tribunal to decide when it would sit, not counsel (another word for barrister or barristers). The judge was already annoyed at Morrison's side on the basis that two weeks ago she had asked them to deliver a witness schedule at the beginning of this trial, which, for some mystifying reason was still outstanding. Telling Chambers she was "quite frankly disgusted" at being so "heavily disrespected" by his side, she made the court aware she had been informed an application was on its way. The judge told Chambers that any application should have been with her before proceedings began at today's scheduled 11.30am start. Sturgeon demanded to know more about the application and why neither of Morrison's barristers "had the courtesy" to appear before her to explain it themselves. Chambers apologised. He took responsibility for the tone of the message sent to the judge and said he was "under a lot of pressure". Some information had come to light at 10am this morning, and the nature of it meant Morrison's team were preparing a recusal application. A little reverberation went through the courtroom. A recusal application is a request to the presiding judge or member of a judging panel or an entire judging panel to stand down on grounds of apparent or actual bias. The senior judge is then required to hold a hearing, and if they are satisfied that they or a member of the panel or the entire panel is biased or apparently biased, they must step down. This may have the effect of causing a tribunal or trial to be re-run. It is a very serious step.
After dropping his little bombshell, Chambers apologised for the application's potential to "capsize matters". The judge asked why Cunningham and Elves were not present and had left him to "deal with this". Chambers replied that his colleagues were "locked in their lodgings", putting together the application. The judge turned to Sean Doherty, barrister for the BFF. When had he been informed about this application? Doherty says it wasn't until he and his colleagues had arrived at court that morning. The judge wondered if Doherty had any comments. There wasn't much Doherty could say, having not seen the application, but he did suggest to the judge it was likely to be "vehemently opposed". Turning back to Chambers, the judge said "I am not happy about the way this has been handled", pointing to "the complete lack of courtesy and disrespect which has been shown by your counsel this morning". Apart from the extra court costs this was going to incur the taxpayer and the disruption it was causing to the case, the BFF's first witness, Michele Devlin (BFF CEO) still hadn't completed her evidence. She remains on oath, unable to talk to her legal team. The judge said that whatever happened she would be releasing Devlin from her oath for the weekend, whether or not she finished her evidence by the end of the day. This seemed to prompt the judge to query why she should have to wait till 2pm for Cunningham and Elves to make their application. Sturgeon asked what the problem would be with starting at 1pm. Chambers asked if he could make a phone call before answering. Doherty indicated his side would not have a problem either way. The judge made her decision. “Get them here for one o’clock”, she growled. The Hearing The parties' legal teams reconvened for a private carpeting at 1pm, and then court was then opened to journalists, observers and members of the public. The recusal hearing began. Naomi Cunningham said that on the basis of information she had received this morning, she was putting in an application to recuse the entire panel. Professor Deborah Boyd was being asked to recuse herself on grounds of actual bias. The judge and her other panel member Michael McKeown were being asked to step down on grounds of apparent bias. Cunningham reminded the court that the legal test for recusal was whether there was a "real possibility" that a reasonable, informed, fair-minded observer would conclude that a panel member (or judge) was biased or apparently biased. Cunningham set the case out against Prof Boyd first. The Case Boyd was formerly a director of Enterprising Women's Network (EWN) which was part of the Women's Regional Consortium (WRC) which itself was part of the Women's Resource and Development Agency (WRDA) in Northern Ireland. The WRDA was a sponsor, along with many other groups - including Transgender NI - of a NI Women's General Election Manifesto in 2019, which included, among other things, the statement:
"We believe that transgender women are women, and deserve access to the same human rights and services as all other members of our society.... We call upon the elected representatives to: Reform the Gender Recognition Act to be based on self-declaration of gender and to provide accessible pathways to legal gender change for non-binary individuals and trans people under the age of 18. Ensure access to timely transition-related-healthcare interventions for trans women and trans people of all genders. Reform gender affirming healthcare provision to depathologise trans identities... while providing useful information on sexual health and wellbeing in every school in Northern Ireland." The WRDA also happened to be one of the organisations "called out" in Sara Morrison's speech at the Let Women Speak event on 16 April 2023, which was Day Zero for this tribunal. The claimant's legal team had also found a significant number of social media posts by Prof Boyd which appeared to nail her rainbow colours to the mast (see below). Cunningham said Boyd should have flagged her membership of EWN at the beginning of the tribunal and the fact she didn't was another example of actual bias. Cunningham also noted that as a "foreign" academic, Professor Boyd had a strikingly low online footprint. It was impossible to know her academic specialism. Perhaps, speculated Cunningham, Professor Boyd had taken steps to scrub her profile of incriminating information. For her next example, Cunningham pointed to a moment on Wednesday this week when Cunningham was cross-examining Michele Devlin and started using sex realist language around men who believe they are women. Cunningham said that during this phase of questioning Professor Boyd became increasingly agitated and, in the middle of proceedings, asked the judge if the panel could rise. This they did, leaving the room for ten minutes or so before returning. Cunningham speculated this might have been because of her use of correct sex pronouns and suggested that Boyd seemed uncomfortable with this. Here she moved on to the apparent bias of the judge and her other panel member Michael McKeown. Assuming the use of correct sex pronouns might have motivated Prof Boyd to ask to rise, and speculating the conversation in chambers involved Prof Boyd informing the panel of her discomfort with Cunningham's pronoun use, Cunningham said it was then incumbent on the panel to ask Boyd to step down. Not doing so meant that Boyd's bias had potentially compromised the entire panel's objectivity. The barrister also raised the curious case of the Sturgeon's decision to downgrade a reporting restriction order (RRO) around Sara Morrison's adult child to an anonymity order (AO). Cunningham speculated this was because the language of the anonymity order used correct sex pronouns (Morrison's adult child identifies as a woman), and the judge was afeared of trans rights activists descending on her and her tribunal once they found this out, which they soon could as the order was in writing on the door of the courtroom. The judge had therefore requested Morrison downgrade the RRO to an AO which was not put in writing, ensuring there was nothing for the trans mob to latch onto. The Response
Speaking for Belfast Film Festival, Sean Doherty called the claimant's application "absolutely staggering". He pointed out Morrison's case is based on people making incorrect assumptions about her, and here she was with a recusal application based on "wild assumptions" about the panel. Doherty told the court the application was "made on the flimsiest of evidence" including "a few selective screenshots" from the social media profiles of Professor Boyd in which she endorses Pride. "And frankly so what?" he said. "She is perfectly entitled to." Doherty said it was "laughable" to allege Boyd had scrubbed her online profile, telling the court Boyd's background was in "waste management". He told the judge he also couldn't understand why Boyd's membership of a women's enterprise group was "somehow objectionable". He called the allegation of apparent bias against the judge and Michael McKeown "an outrageous attack on the integrity of this tribunal" given there was "no evidence whatsoever to support it". Battle lines drawn, the tribunal rose to consider the application. The Result At 4.23pm the tribunal returned. The judge dealt with the allegation of actual bias against Professor Boyd. Starting first with Boyd's discomfort when Cunningham started using same sex pronouns and her request for the panel to rise, the judge said she had permission to tell the court that Boyd suffered from fybromyalgia and has been in pain throughout this tribunal. On Wednesday it was particularly acute. Boyd had made the request to rise so she could take some medication. The judge said the only conversation that took place in chambers was to see if Boyd was okay and to assess her suitability to continue sitting on the panel. After receiving assurances, the judge decided Boyd was well enough to continue and the panel could return to court. Nonetheless, to enable Boyd to manage her condition, avoid a long and painful commute and assuage any concerns, the judge said Boyd would be stepping down from the Morrison v BFF panel. The judge then turned to the issue of downgrading the RRO to an anonymity order. The judge made the point that the AO had been made orally using exactly the same pronouns as the initial RRO. But for clarity, she would ensure the AO (as given orally) was recorded in writing and distributed to the court. The judge and Michael McKeown were therefore not going to recuse themselves, which left the question of whether or not Morrison wanted the court to find another panelist or was happy to continue with just one panelist alongside the judge. The judge reminded the parties that finding another panelist could be done at the weekend. The new panelist would have to listen to the recording of proceedings whilst getting up to speed with the paperwork on Monday before potentially re-starting the tribunal on Tuesday. After a short break ("five minutes" intoned the judge) to take instruction, Cunningham returned to say she had spoken to her client and to her opposite number and both parties were content to continue with just McKeown as the other panelist. This means the tribunal can resume on Monday (at 1.30pm to accommodate Sean Doherty, who has a diary clash). Michele Devlin can finally finish giving evidence, but according to the law she cannot be released from her oath for the weekend. This means she cannot talk about her evidence to anyone. Naomi Cunningham promised the judge the witness schedule she had been asking for would be with her first thing Monday morning. As the judge rose to leave, Professor Boyd stood up, stared at the court and uttered her first recorded words to the tribunal all week. "Thank you!" she said, and stalked out after the judge. I will leave you with some of Professor Boyd's social media posts. Have a great weekend!
This is the GenderBlog newsletter. If you have been forwarded it and would like to join the mailing list so each newsletter and GenderBlog blog post drops, freshly-baked, directly into your email inbox, please consider making a small (or large!) donation via the donate page on my GenderBlog website. Thanks. © Nick Wallis 2025 |
|
Gender Blog | Unsubscribe |