A member of the panel convened to decide the outcome of Sara Morrison’s discrimination claim against Belfast Film Festival has stepped down after Morrison’s legal team applied to have the entire judging panel removed.
Professor Deborah Boyd voluntarily stepped down for health reasons after Morrison’s barrister Naomi Cunningham accused Boyd of bias and failing to declare her bias to the court at the beginning of the tribunal. The allegations stem from Boyd’s affiliations with pro-trans women’s groups and her social media posts.
Heavy Disrespect
The fifth day of the tribunal hearing on Friday morning was due to begin at 11.30am with Belfast Film Festival (BFF) CEO Michele Devlin continuing to give evidence. By midday, nothing had happened. Apparently the court had been informed that neither Naomi Cunningham nor her junior, Dr Charlotte Elves were ready, as they were preparing an application. Employment Judge Lisa Sturgeon was livid. She told Morrison’s solicitor Simon Chambers it was for the tribunal to decide when it would sit, not counsel.
Sturgeon declared she was “quite frankly disgusted” at being so “heavily disrespected” by Chambers’ side, and reminded the solicitor that any application should have been with her before the morning’s proceedings began. Sturgeon then demanded more information about the application and why neither of Morrison’s barristers “had the courtesy” to appear before her to explain it themselves.
Chambers apologised and told the judge some information had come to light at 10am this morning. The nature of it meant Morrison’s team were preparing a recusal application. A little reverberation went through the courtroom. Chambers apologised for the application’s potential to “capsize matters”.
The judge asked why Cunningham and Elves had left him to “deal with this”. Chambers replied that his colleagues were “locked in their lodgings”, putting together the application. The judge told Chambers she was “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.” The court rose until the application could be heard.
“Get them here for one o’clock”, Sturgeon growled at Chambers.
Connections
A recusal application invites one or all members of a judging panel to remove themselves from proceedings if evidence has come to light which may either prove (actual bias), or suggest they are biased (apparent bias). The specific legal test is: “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
Recusals are serious. They disrupt proceedings and sometimes bring them to a complete halt. Judges do not like them, for obvious reasons. Once the court had reconvened, with Morrison’s counsel now present, Naomi Cunningham invited the entire judging panel to recuse themselves. Boyd for actual bias and Employment Judge Lisa Sturgeon and the other panel member Michael McKeown for apparent bias.
Cunningham started with Boyd, telling the court that the panel member had previously been a director of Northern Irish group Enterprising Women’s Network (EWN). This 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 one of the organisations “called out” by Sara Morrison at the Let Women Speak (LWS) event on 16 April 2023, which was essentially Day Zero in this tribunal.
In 2019, WRDA was a sponsor, along with many other groups – including Transgender NI – of a Northern Ireland Women’s General Election Manifesto, 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.“
Proud Deborah
Cunningham had also found various social media posts which detailed Boyd’s support for Pride events in Belfast and London. Given Belfast Pride supporters were among those who attacked Sara Morrison online, this was a problem for Cunningham who felt the court should have been told about her former membership of EWN and that she was “associated with Pride and LGBT activism”.
Cunningham told the court it was difficult to find much information online about Professor Boyd including her academic specialism. The barrister floated the idea that “steps may have been taken to reduce her online presence”.
The third issue raised in relation to Professor Boyd (whose online footprint also does not advertise where she is a Professor) was that when Naomi Cunningham started talking about men who believe they are women during her cross-examination of BFF CEO Michele Devlin on Wednesday, Boyd became agitated and asked the panel to rise, which they did, leaving the court for around ten minutes.
Cunningham speculated this might have been because of her language and suggested that Boyd seemed uncomfortable with this. Cunningham then moved on to the apparent bias of the judge and her other panel member Michael McKeown. Assuming her language 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 language, the barrister 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.
Speaking for the BFF, barrister Sean Doherty opposed the recusal application. Doherty called it “staggering”, noting “this application is made on the flimsiest of evidence. There are a few selective screenshots from the social media profiles of Professor Boyd in which she endorses Pride – and frankly so what. She is perfectly entitled to.” He called the allegation that Boyd has “scrubbed” her online profile “laughable” and told the court she has a background in “waste management”. As for her membership of EWN, Doherty could not see how anyone could find that “objectionable”.
As for the allegation that Boyd’s alleged discomfort at Cunningham’s language existed and was communicated to the judge and other panelist who then appeared to do nothing about it, that was “an outrageous attack on the integrity of this tribunal” with “no evidence whatsoever to support it”.
Result
The panel rose to consider the application, returing at 4.23pm. The judge dealt with the allegation of actual bias against Professor Boyd. Starting first with Boyd’s discomfort earlier in the week when Cunningham started using sex realist language and Boyd’s visible agitation, 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. Nonetheless, to enable Boyd to manage her condition, avoid a long and painful commute and (presumably) assuage any concerns, the judge said Boyd would be stepping down from the Morrison v BFF panel.
The judge rejected Cunningham claim of her and McKeown’s apparent bias and said the tribunal would continue on Monday. As the panel rose to leave, Prof Boyd stood, said a stony-faced “thank you!” and marched out, with her now ex-colleagues.
To read all the live tweets from Day 5 of the Morrison v Belfast Film Festival employment tribunal, reformatted and set out chronologically, click here.
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