34-minute read
Dermot Feenan
LLB MA LLM Barrister-at-Law (non-practising) FRSA
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This article sets out public interest concerns about the conduct of a practising barrister of the Bar of England and Wales which have led to allegations that he breached the Bar Standards Board Code of Conduct. The concerns arise from, principally, a tweet posted by the barrister, Jon Holbrook, on 17 January 2021 in which he used the phrase “stroppy teenager of colour” in response to a tweet from the Equality and Human Rights Commission which referred to the success of Ruby Williams, a pupil of colour, and her parents—with the support of the Commission—in challenging a school policy on hair on the basis that it was racially discriminatory. The public interest concerns focus on the scope and application of the Code of Conduct, allegations that might be developed against the barrister, the significance of hair as a basis for finding racial discrimination, and the place and scope of freedom of expression as a potential defence to a complaint in such a case.
Numerous requests were made to the barrister to remove the tweet, including from his chambers, to no avail. Complaints have already been made against the barrister in question by other lawyers, including barristers. No explanation or satisfaction has been forthcoming from the barrister that excuses the words “stroppy teenager of colour”.
This article sets out public interest concerns which I address here as an academic, including with reference to relevant academic literature. Professional disciplinary proceedings against barristers (or other legal professionals) have increasingly attracted scholarly attention, primarily because of tensions generally between regulation and independent practise, often linked to particular tensions between specific regulatory norms and freedom of expression. These tensions have increasingly been tested in court in England and Wales, similar to developments in other jurisdictions such as Canada.
Alongside the public interest concerns raised in the present case, I also independently submitted a confidential complaint regarding the barrister’s conduct, in the prescribed form, to the Bar Standards Board.
I have no personal dispute against the barrister in question and, absent any intention to practise at the Bar, have no potential conflict in this matter. I should also add that I am concerned at some vicious personal/ ad hominem attacks on the barrister for his tweet which are entirely unwarranted.
For convenience, the article is structured as follows.
- Summary
- Facts
- The barrister: Mr Jon Holbrook
- The tweets
- Position of Mr Holbrook’s former chambers
- Bar Standards Board Code of Conduct
- Bar Standards Board Social Media Guidance
- Assessment of the allegations
- Freedom of expression
- Conclusion
1. Summary
The concerns are that Mr Jon Holbrook, a practising barrister of the Bar of England and Wales, breached two Core Duties in the Bar Standards Board Code of Conduct for a tweet he posted at 9.34am on Sunday, 17 January 2021 (and for similar tweets between 19 May 2015 and 17 January 2021). Numerous requests were made to Mr Holbrook to delete his tweet of 17 January 2021.
The two Core Duties are Core Duty (CD) 5 and CD8:
- CD5 You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession
- CD8 You must not discriminate unlawfully against any person
Before setting out the alleged offences and how these might be elaborated, this article sets out relevant details regarding Mr Holbrook.
2. Facts
2.1 The barrister: Mr Jon Holbrook
Mr Jon Holbrook was called to the Bar of England and Wales in 1991. He was, until recently, a member of Cornerstone Barristers, chambers in London.
He is recorded in the Bar Standards Board register as a barrister.
Mr Holbrook is the account holder of the Twitter account @JonHolb.
His Twitter profile identifies him as, inter alia, ‘Barrister’.
Mr Holbrook’s profile also links to his author page at the online magazine Spiked. At the time of the tweet, the magazine’s webpage listed 24 articles which Mr Holbrook has written for the magazine. The articles typically address issues in law and politics. Titles of these articles include ‘Kick judges out of politics’, ‘Feminists think stereotypes are only bad when other people use them’, ‘Populism is a struggle for democracy’, and ‘Diversity: the new favouritism’. Each of Mr Holbrook’s articles for this magazine carries his full name and his status as a barrister, plus an invitation to follow him at his Twitter handle, as follows: “Jon Holbrook is a barrister. Follow him on Twitter: @JonHolb”.
Mr Holbrook’s Twitter profile also contains a header image (also known as a ‘banner’). That image is split in half, along the perpendicular. The left side shows part of the front cover of an edited book to which he contributed a chapter. The right side shows part of the first page of his chapter ‘The Rise and Fall of the Rule of Law’ in the book. The image of the front cover shows the title of the book From Self to Selfie. The book was published in 2019 by Palgrave Macmillan. The Notes on contributors in the book includes a note on Mr Holbrook. That note begins:
“Jon Holbrook has been a practising barrister for over 25 years. He started his legal career in 1991 in what became a leading human rights chambers (Garden Court Chambers) by doing mostly legal aid work for individual service users, but in 2004 he moved to a different sort of chambers where he built a practice acting mostly for local authorities and service providers. He changed his practice in order to swim against the tide that was moving in an ever-changing rights-based direction. The author is recognised as a leading barrister for public law by the legal directories. In 2017 Chambers & Partners described Holbrook as ‘terribly good—you get a QC service when you go to him’.” (pp. xv-xvi)
Mr Holbrook’s profile at Cornerstone Chambers stated that he worked at Garden Court Chambers for twelve years, then at Hardwicke Chambers for two years before moving to Cornerstone Chambers in 2006.
Mr Holbrook clearly identifies himself as a barrister in the aforementioned publications, all of which are linked to his Twitter profile.
2.2 The tweets
On Sunday, 17 January 2021, at 9.34am, Mr Holbrook retweeted a tweet by the Equality and Human Rights Commission (hereafter EHRC). Mr Holbrook’s tweet stated:
“The Equality Act undermines school discipline by empowering the stroppy teenager of colour.”
The tweet by the EHRC, which was posted at 9.19am on 17 January 2021, stated:
‘When Ruby was sent home because of her hair, she knew something was wrong.
The Equality Act 2010 is clear; no one should face discrimination because of their race.
Thank you to Kate and Lenny Williams for sharing your family’s story.’
Both tweets are illustrated below.
The EHRC tweet was accompanied by a video of 2 minutes and 20 seconds duration produced by the EHRC. The video features Kate and Lenny Williams, parents of Ruby, talking about a complaint they made—with the assistance of the EHRC—against Ruby’s school in which they alleged discrimination against Ruby under the Equality Act 2010.
The video begins with an image of the end of terraced housing, overlaid with a female voice talking about Ruby and her hair. It becomes clear that this is Kate Williams. The video then shows Kate Williams as she continues to speak. The video also shows photos of Ruby. At 12 seconds into the video, Kate Williams refers to Ruby’s ‘Afro hair’.
The video also shows Kate and Lenny Williams together. It also features images of the school.
Ruby did not appear in person in the video. However, the video features several photos of her at different ages. Neither did the video feature her voice, either directly or through a narrator.
The video makes clear that the policy the school relied on referred specifically to “Afro-style hair”.
A transcript of the video is set out below.
Transcript
Kate Williams:
When Ruby was first born, she had a little bit of hair but not a lot of hair and then as she got older, she ended up with so much hair. So her hair is healthy, beautiful Afro hair. And then Year 10 was when we hit this brick wall all of a sudden at the school.
So, when she came home the first time and she said that a teacher had told her that her hair was too big and she was going to need to do something about it, we just brushed it off that day. But she went back the next day and the same teacher said the same thing to her again and they told her to look on the website and she would be able to see the hair policy on the website.
So, she came home that day. We went straight onto the website and that was when we saw it for the first time: the rule which said about Afro-style hair, including buns, needed to be of reasonable size and length.
Straight away we raised it as an informal complaint with the school but they came back very clearly and said that they weren’t going to change this rule which is why we escalated this to a formal complaint. And it was after all of that that she started being sent home from school.
Lenny Williams:
There was times when it was very hard for us to get Ruby to go to school because she didn’t know if she got sent to school whether she would be accepted in the school with the way she had her hair set that day. I could just see my daughter kind of withering away in front of me.
Kate Williams:
So that was when the Equality and Human Rights Commission more stepped in themselves. And their legal team helped us legally and, to be honest, emotionally.
We’re very, very grateful that we have the Equality and Human Rights Commission who are there to fight these sorts of situations and, you know, there might be another child somewhere, who looks like Ruby, has hair like Ruby and her school might not do this to her because of what’s happened to Ruby.
It’s certainly changed the way Ruby’s life’s going to go and she wants to see other children and young people celebrating their Afro hair rather than it being seen as something that has to be policed.
The video then shows the following text: “Since Ruby’s case settled, the school signed a legally binding agreement with us to end its discriminatory uniform policy.”
2.3 Position of Mr Holbrook’s former chambers
On Saturday, 23 January 2021, at 4.36pm, Mr Holbrook’s chambers issued a statement on Twitter regarding Mr Holbrook’s tweet.
It included the following:
“We want to make it very clear that Cornerstone Barristers repudiates the contents of the tweet and all that it insinuates. The contents of the tweet do not in any way reflect the views of Cornerstone Barristers.
The individual has been asked to delete the tweet immediately and permanently and we are undertaking an urgent internal investigation into the matter.
We unequivocally condemn discrimination in all of its forms and are proud of our record as a diverse chambers which promotes social mobility at the Bar. We are fully committed to equality, diversity and tolerance”
On Sunday, 31 January 2021, Mr Holbrook’s chambers issued a further statement announcing that members of the chambers had voted to expel Mr Holbrook, effective on and from 1 February 2021 (see below).
The statement continued: “The expulsion followed an investigation into tweeting from Mr Holbrook’s personal Twitter account. Members were clear that statements made on social media by Mr Holbrook were irreconcilable with membership of Cornerstone Barristers.”
This formulation is significant because it may be taken to imply that part of the reasoning by Cornerstone Barristers was not simply the single tweet by Mr Holbrook on 17 January or the single statement in that tweet but ‘tweeting’ and ‘statements’. This interpretation would be consistent with concerns raised elsewhere about other tweets by Mr Holbrook – which I address shortly.
The statement ended by reiterating parts of the tweet on 23 January 2021.
At the time of writing (12.30pm, Wednesday, 3 February 2021), the tweet remains on Mr Holbrook’s timeline.
Mr Holbrook’s position appears to be that he has no intention of deleting the tweet. He has written subsequently in defence of the tweet.
3. Bar Standards Board Code of Conduct
The Bar Standards Board regulates barristers and specialised legal services businesses in England and Wales. It sets the rules for barristers in the Bar Standards Board Handbook.
Part 2 of Handbook contains the Code of Conduct which sets out the Core Duties which all barristers are required to comply with.
The Handbook also refers to Outcomes, Guidance, Rules and Regulations. “CD” refers to Core Duties, “o” to Outcomes, “g” to Guidance, “r” to Rules and Regulations.
The Handbook defines Outcomes as follows:
“these explain the reasons for the regulatory scheme and what it is designed to achieve. They are derived from the regulatory objectives as defined in the LSA [Legal Services Act] and the risks which must be managed if those objectives are to be achieved. They are not themselves mandatory rules, but they are factors which BSB regulated persons or unregistered barristers should have in mind when considering how the Core Duties, Conduct Rules or Bar Qualification Rules (as appropriate) should be applied in particular circumstances. The Bar Standards Board will take into account whether or not an Outcome has, or might have been, adversely affected when considering how to respond to alleged breaches of the Core Duties, Conduct Rules or Bar Qualification Rules.”
The Handbook states that the Rules serve three purposes. The first purpose is relevant to this article. It states:
“the Conduct Rules supplement the Core Duties and are mandatory. Disciplinary proceedings may be taken against a BSB regulated person or unregistered barrister if the Bar Standards Board believes there has been a breach by that person of the Conduct Rules set out as applying to them in Part 2 of this Handbook and that it would be in accordance with the Enforcement strategy to take such action. However, the Conduct Rules are not intended to be exhaustive. In any situation where no specific Rule applies, reference should be made to the Core Duties. In situations where specific Rules do apply, it is still necessary to consider the Core Duties, since compliance with the Rules alone will not necessarily be sufficient to comply with the Core Duties.”
The Bar Standards Board says of Guidance (on its website):
“Guidance assists barristers in the interpretation of the Core Duties and rules, and provides examples of the types of conduct or behaviour that the rules are intended to encourage.
The guidance in the BSB Handbook is not the only guidance which is relevant to barristers. In addition to the guidance in the BSB Handbook, we publish:
- Guidance on our website;
- A Bar Qualification Manual; and
- Supporting information on the Equality Rules in the Handbook.”
One of the guidance documents produced by the Bar Standards Board is on social media, to which I now turn.
4. Bar Standards Board Social Media Guidance
In October 2019, the Bar Standards Board produced Social Media Guidance.
The Guidance was published after it became increasingly clear that some barristers had breached the Code for conduct on social media. The Guidance, which is two pages in length, was unambiguous.
The first paragraph of the Guidance states: “This applies to you in both a professional and personal capacity, since the inherently public nature of the Internet means that anything you publish online may be read by anyone and could be linked back to your status as a barrister.”
The Guidance does not require that a post on social media itself state that it is made by a barrister, or even that the account from which it is sent carries that status. Rather, it is concerned with conduct that ‘could be linked back’ to status as a barrister. This clearly covers Mr Holbrook’s tweet.
His tweet could be linked back to his status as a barrister. His Twitter profile states that he is a barrister. The profile links to his articles page at Spiked. His articles refer to his status as a barrister. Mr Holbrook’s banner image is of his chapter and the front cover and title of the book in which he published that chapter. A simple search online quickly reveals that Mr Holbrook is identified in the Note on contributors as a barrister.
The Bar Standards Board Social Media Guidance emphasises the risk to the profession from social media conduct. The second paragraph of the Guidance states: “Remember that you are bound by Core Duty 5 not to behave in a way which is likely to diminish the trust and confidence which the public places in you or the profession at all times.” This sentence is emboldened in the Guidance. The final three words of the sentence are underlined in the Guidance. The prominence of this reminder within the Guidance, in terms of position, textual emphasis and underlining serves as a clear, emphatic caution to barristers, with specific reference to a Core Duty.
The Guidance goes on to address specific types of conduct. It states: “Comments designed to demean or insult are likely to diminish public trust and confidence in the profession (CD5)” [3] (emphasis added).
The Guidance continues: “It is also advisable to avoid getting drawn into heated debates or arguments. Such behaviour could compromise the requirements for barristers to act with honesty and integrity (CD3) and not to unlawfully discriminate against any person (CD8)” (emphasis in original). It is clear so far that the Bar Standards Board views Core Duties 3, 5 and 8 as potentially in issue in relation to social media use.
The Guidance concludes with a further reinforcement of the position that social media use is relevant for the purpose of any disciplinary action by the Bar Standards Board. The Guidance states: “When you are using social media, you should bear this guidance in mind at all times. This guidance will be considered by the BSB in any action it takes over concerns about social media use.”
Any barrister subject to the Code is left in no doubt that certain types of social media conduct are subject to disciplinary investigation.
5. Assessment of the allegations
In this section, I assess the allegations. I address first Core Duty (CD) 8: “You must not discriminate unlawfully against any person”. Then, I turn to CD5: “You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession”.
5.1 CD8: You must not discriminate unlawfully against any person
5.1.i To whom does Mr Holbrook refer?
Mr Holbrook states: “The Equality Act undermines school discipline by empowering the stroppy teenager of colour.”
Mr Holbrook has subsequently stated that he was referring here to Ruby Williams.
Courts have consistently applied a test of what the ordinary reasonable reader would understand by the words under interpretation (Stocker v Stocker [2019] UKSC 17; Monroe v Hopkins [2017] EWHC 433).
Mr Holbrook’s phrase “of colour” in his tweet may also be interpreted, on an ordinary reasonable interpretation, to refer to all teenagers of colour.
Mr Holbrook does not refer simply to teenagers or to ‘a’ teenager or ‘this’ teenager, which he could have done. He refers to “the teenager of colour”.
5.1.ii ‘Discriminate’
The EHRC tweet which Mr Holbrook retweets refers specifically to the Equality Act and race.
Race is one of the nine ‘protected characteristics’ in the Equality Act. The Act states:
“(1) Race includes—
(a) colour;
(b) nationality;
(c) ethnic or national origins.”
The text in the tweet does not refer to ‘colour’. The concept of race as defined in the Act refers to four non-exhaustive sub-concepts, one of which refers to colour.
It is Mr Holbrook who brings up skin colour. Ruby is a person ‘of colour’. This is clear from the photos of her in the video. It may seem obvious but it is perhaps necessary to point out: the term ‘of colour’ is not typically understood to refer to white people.
How pupils wear their hair is not an issue that arises only among pupils (still less teenagers) of colour. White students can, and have, been subject to discipline under hair policies at school.
Mr Holbrook has chosen to single out only the “teenager of colour”.
Mr Holbrook refers in his tweet to “school discipline”. By singling out the “teenager of colour”, Mr Holbrook is not concerned with “school discipline” or the breach of such policy by just any pupil: he separates out “the teenager of colour”. This amounts to discrimination on the basis of ‘race’. This treats Ruby and any other teenager of colour less favourably on the grounds of ‘race’ than other teenagers who are not “of colour”. Without more, this is a substantial requirement for unlawful direct discrimination in section 13 of the Equality Act 2010.
This less favourable treatment is reinforced by two other features of Mr Holbrook’s reference to skin colour. The first is the use of the adjective ‘stroppy’.
‘Stroppy’: Literal definition
The Cambridge English Dictionary defines ‘stroppy’ as follows: “angry and unpleasant or rude to other people”.
The Oxford English Dictionary defines ‘stroppy’ as follows:
“Bad-tempered, rebellious, awkward, obstreperous, unruly.”
These definitions refer to undesirable (or negative as opposed to positive) behaviours or characteristics. To describe someone as stroppy is to apply to that person such undesirable or negative behaviour or characteristic.
There is nothing in the EHRC tweet or accompanying video which refers to Ruby as ‘stroppy’ or which could reasonably be taken to interpret her behaviour or that of other pupils taking similar action as ‘stroppy’. The EHRC tweet and accompanying video refer to a female pupil supported by her parents and the statutory body with duties to protect rights properly challenging discrimination.
Notwithstanding, Mr Holbrook applies this negative adjective to the teenager “of colour”.
Mr Holbrook has subsequently stated:
The description of Ruby as a “stroppy teenager” was apt.
Mr Holbrook refers to the Equality Act in his tweet. He knows or should know the provisions of the Act (and predecessor legislation) and associated case law.
Nothing in the Act can be taken to allow a view it “undermines school discipline by empowering the stroppy teenager of colour”.
Case law recognises that those subject to the Act can lawfully have policies on appearance provided they do not discriminate against a person or group on the basis of a protected characteristic. This point was expressly stated by Mr Justice Collins in G v Head Teacher and Governors of St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin): “A rigid appearance policy at a school is clearly entirely reasonable provided it complies with equality law” [60].
In one of the leading, well-established non-discrimination cases in the United Kingdom, Mandla v Lee [1983] 1 All ER 1062, the House of Lords held that a school’s insistence that a Sikh pupil remove his turban and cut his hair was unlawful discrimination against an ethnic group in breach of section 3 of the Race Relations Act 1976.
In the aforementioned G case, Mr Justice Collins stated that a school policy which prohibited cornrows – a hairstyle common among boys and girls of African-Caribbean ethnicity – could amount to indirect race discrimination.
This position has also been accepted in court-ordered settlement, such as in the case taken by the parents of Chikayzea Flanders against Fulham Boys School following the school’s insistence in 2017, with reference to its uniform and appearance policy, that Chikayzea, a Rastafarian, cut his dreadlocked hair. It is a tenet of Rastafarianism that hair should not be cut. Rastafarianism is legally recognised as a religious belief (Harris v NKL Automotive Ltd, [2007] UKEAT 0134_07_0310) and protected under the Equality Act 2010.
Mr Holbrook’s tweet was not a reasonable critique of the Equality Act. The Act is subject to regular critique, including by practitioners, academics and policy makers working in the field of equality and non-discrimination law. Mr Holbrook might have argued that the recent interpretations of the Act could undermine school discipline. He did not do so. Instead, his tweet amounted to unlawful discrimination for the reasons stated above.
Mr Holbrook has subsequently sought to defend his tweet, either in self-authored articles or in quotations to journalists, as the following illustrative selection show:
(a) Self-authored
‘Should school uniform policy have to accommodate cultural sensitivities?’, Conservative Woman, 25 January 2021.
‘Cancelled by my barristers’ chambers over a Tweet’, The Critic, 31 January 2021.
(b) Quotes
Neil Rose, ‘Uproar over barrister’s “stroppy teenager of colour” tweet’, Legal Futures, 25 January 2021.
None of these communications justify his unlawful discriminatory reference to ‘the stroppy teenager of colour’ in his tweet of 17 January.
Context
While the use of the adjective ‘stroppy’ is often used in relation to ‘teenager’ (and is used to illustrate that definition in the Cambridge English Dictionary), the use of the word ‘stroppy’ in relation to a person of colour may also be understood in relation to the context of racialised meaning. The phrase ‘stroppy teenager of colour’ was, to borrow the words used in Diggins v Bar Standards Board [2020] EWHC 467 (Admin), “racially charged”. In that case, the High Court upheld a finding of a Disciplinary Panel that Martin Diggins, a barrister, had “used racist and sexist language […] contrary to CD5” in reply to a tweet by a young Black female student at the University of Cambridge in which she posted an Open Letter to the English Faculty at the University. The letter called for, in summary, decolonization of the curriculum. Mx Diggins’ reply stated:
“Read it. Now; refuse to perform cunnilingus on shrill negroids who will destroy an academic reputation it has taken aeons to build.”
It is not necessary to interpret the Code of Conduct as a statute, still less determined by the provisions of the Equality Act. The Code is, in fact, silent on what constitutes ‘unlawful’.
Part 2 – C. of the Bar Standards Board Handbook set out the Conduct Rules. Rule C12 addresses “Discrimination”. The Handbook states:
“rC12 You must not discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief, or pregnancy and maternity.”
Guidance on Rule C12 refers to the BSB Handbook Equality Rules. These reiterate the need not to discriminate.
The Handbook does not define what is unlawful discrimination. The Equality Rules refer to the Equality Act 2010, but they do not state that unlawful discrimination is limited only to the Act. It would be anomalous if unlawful discrimination were limited to the Act. The UK has ratified the International Convention on the Elimination of All Forms of Racial Discrimination. It provides that “racial discrimination”:
“shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
There has been increasing recognition in the United Kingdom and elsewhere that school policies which single out for discipline pupils with Afro-style hair or other aspects of policies which have direct or indirect discriminatory effect on Black people in relation to their natural hair are unlawful or should be unlawful.
Broader context of discrimination against racial or ethnic groups with reference to hair
There is increasing consensus on how certain views about hair and hair style can amount to racial or ethnic discrimination.
In 2019, California passed legislation called the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act which amended the state’s Education Code and the Fair Employment and Housing Act’s definition of race to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The legislation states in section 1(f): “In a society in which hair has historically been one of many determining factors of a person’s race, and whether they were a second class citizen, hair today remains a proxy for race. Therefore, hair discrimination targeting hairstyles associated with race is racial discrimination.” Similar legislation was passed in New York state in 2019.
In the same year, New York City Commission on Human Rights produced Legal Enforcement Guidance on Race Discrimination on the Basis of Hair. The Guidance noted: “Anti-Black bias also includes discrimination based on characteristics and cultural practices associated with being Black, including prohibitions on natural hair or hairstyles most closely associated with Black people” (p. 1). The Guidance goes on to state (footnotes deleted): “The New York City Human Rights Law (‘NYCHRL’) protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities. For Black people, this includes the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”
In December 2020 in the UK, the Halo Collective launched the first hair code in the country. The Collective has a code specifically for schools and a code specifically for the workplace. The Halo Code for Schools states:
“Our school champions the right of staff and students to embrace all Afro-hairstyles. We acknowledge that Afro-textured hair is an important part of our Black staff and students’ racial, ethnic, cultural, and religious identities, and requires specific styling for hair health and maintenance.
We welcome Afro-textured hair worn in all styles including, but not limited to, afros, locs, twists, braids, cornrows, fades, hair straightened through the application of heat or chemicals, weaves, wigs, headscarves, and wraps.
At this school, we recognise and celebrate our staff and students’ identities. We are a community built on an ethos of equality and respect where hair texture and style have no bearing on anyone’s ability to succeed.”
One of the members of the Collective, Emma Dabiri, is also author of the book Don’t Touch My Hair. She has said, “the draconian policing of afro hairstyles in schools has to be recognised as being firmly in a continuum of 19th-century racist ideologies”. Dabiri started a petition for the Equality Act to include explicit reference for Afro hair. The petition has received over 74,000 signatures.
Widespread concerns that Mr Holbrook’s tweet amounted to discrimination
I noted earlier that Mr Holbrook’s chambers expelled him following his tweet of 17 January. They repeated in their announcements on 23 and 31 January: “We unequivocally condemn discrimination in all of its forms.”
In their announcement of 31 January, they referred to Mr Holbrook’s tweet as “particularly offensive”.
The concerns raised by Mr Holbrook’s chambers about discrimination were shared by many other practising barristers.
Caoilfhionn Gallagher QC, Doughty Street Chambers, wrote in reference to Mr Holbrook’s tweet, tagging Kate Williams: “I’ve just seen this vile tweet […] so sorry @KateRoseWill & Ruby subjected to this ignorant, discriminatory view”. She was replying to a tweet, which has since been deleted, from Philip Marshall QC, 1 King’s Bench Walk, in which he referred to Mr Holbrook’s tweet. (I have a screengrab of that tweet, but due to Mr Marshall’s decision to delete the tweet will not be publishing it here.)
Toby Cadman, Guernica 37, responded to the tweet from Caoilfhionn Gallagher QC (quoted above in 5.1.ii), and, in referring to the tweet from Mr Holbrook, wrote: “It reflects badly on us all.”
A number of legal professionals referred to matters which have previously been addressed in this article.
Alexandra Wilson, a Black barrister at 5SAH, referred to the use of the word ‘stroppy’, asking: “Stroppy? For wanting to go to school with her natural hair?”
Another lawyer commenting on Mr Holbrook’s tweet, Thomas Hederrick, Associate & Litigation Executive, Broudie Jackson Canter, wrote that tweet was “out and out racism”:
The concerns of Ms Wilson, a Black barrister, especially take on particular significance given that research repeatedly shows troublingly high levels of racism at the Bar.
Research conducted by the Bar Standards Board in 2019 reported that ‘Black, Asian and Minority Ethnic’ (BAME) graduates of the Bar Professional Training Course are roughly half as likely to obtain pupillage as ‘white’ graduates with similar prior educational attainment.
A survey of barristers by the Bar Council in 2017 found that 34 per cent of ‘BAME’ barristers said they had experienced bullying, discrimination and harassment in the previous two years, compared to 19 per cent of ‘white’ barristers. The survey also found that at the self-employed Bar, the person most commonly cited as responsible for harassment or bullying, or discrimination, is another barrister in chambers. Forty-seven per cent of those who reported personal experience of harassment or bullying and/or discrimination cited another barrister as responsible.
Discrimination: consistent with previous tweets
I noted in 2.3 that one interpretation of the announcement on 31 January from Mr Holbrook’s then chambers reveals concern not simply with the single tweet by him on 17 January or the single statement in that tweet but with ‘tweeting’ and ‘statements’ – which would be consistent with concerns raised elsewhere about other tweets by Mr Holbrook.
Mr Holbrook’s tweet on 17 January is consistent with similar prejudicial views on Twitter against the following groups (characterised with reference to their protected characteristics under the Equality Act 2010):
- people of colour [race];
- LGBT people [sexual orientation];
- Irish Travellers [race/ ethnic origin]; and
- the Irish [race/ nationality]
It is for the Bar Standards Board to decide whether these similar views also warrant disciplinary investigation. They would appear prima facie, in whole or in part, to breach Core Duty 5 and Core Duty 8.
Evidence of these prejudicial views are set out below:
Drawing adverse attention to, misrepresenting and criticising people of colour
At 6.59am on 14 January 2020, Mr Holbrook responded to a tweet by Dr Shola Mos-Shogbamimu reporting on her interview on the ITV television programme ‘This Morning’ in which she spoke about racism. Mr Holbrook did not refer to Dr Mos-Shogbamimu by her professional title ‘Dr’ nor by the first professional occupation used in the ITV caption: ‘lawyer’. Instead, he referred to her as “[t]his black activist”. Moreover, he seriously misrepresented what Dr Mos-Shogbamimu said.
Dr Mos-Shogbamimu did not state, as Mr Holbrook claims, that “black people must be believed, [because] they’re black” and that “white people mustn’t question them, [because] they’re white”. Dr Mos-Shogbamimu’s tweet contains the following text:
“It is not the job of black people & ethnic minorities to educate white people on racism perpetuated by white people. White folks need to educate themselves on #racism.”
Me explaining what racism is from the lens of #WhitePrivilege on #thismorning #royalcrisis #HarryandMeghan
Nothing in this justifies Mr Holbrook’s tweet. The excerpt of the programme lasts 2 minutes and 14 seconds. Nothing that Dr Mos-Shogbamimu says in that excerpt justifies Mr Holbrook’s claims.
At 11.57pm on 7 January 2020, Mr Holbrook liked a tweet suggesting that June Sarpong OBE, Director of Creative Diversity at the BBC, was appointed to this post only because she is “a certain colour”. Ms Sarpong described herself in the accompanying BBC tweet as a “dark skinned Black woman” – a description repeated by Mr Holbrook.
The tweet responded to a post by Mr Holbrook which commented on an article by Ms Sarpong. As with his comment on Dr Mos-Shogbamimu, Mr Holbrook misrepresents what Ms Sarpong wrote. Mr Holbrook states:
June Sarpong a “dark skinned Black woman (her words) […] wants to promote ideas & people on the basis of diversity, not merit.”
Ms Sarpong does not state in her article that she will not promote ideas and people on the basis of merit. She refers to diversity in her article, which is entirely consistent with her role as the BBC’s Director of Creative Diversity. At no point does she state that diversity substitutes for merit, nor does she indicate that she would not also consider merit.
Again, Mr Holbrook does not use Ms Sarpong’s full title. Her Twitter handle shows that she is ‘June Sarpong OBE’. Mr Holbrook omits the reference to her OBE.
Mr Holbrook likes a reply (from @bromleyboy007) to his tweet which, in referring to Ms Sarpong, includes the following statement: “I wonder if she got the job because of positive discrimination. Now isn’t that racist; employing someone because they are a certain colour.” There was nothing in the article by Ms Sarpong, Mr Holbrook’s tweet, nor the reply from @bromleyboy007 which could reasonably lead to a conclusion that Ms Sarpong had been appointed because of her colour. The insinuation that she did not deserve that appointment is suggestive of prejudice against Black people.
Prejudice towards LGBT/Q people
In a number of tweets, Mr Holbrook implies that LGBT people are not ‘ordinary’, that is they can be distinguished from the rest of the population that is ‘ordinary’. The implication is clearly used to stigmatise LGBT people. The following two tweets illustrate this aspect of Mr Holbrook’s prejudice.
Nowhere in the video nor in the accompanying policy was there any reference to ‘rainbow flags’.
A large number of lawyers objected to Mr Holbrook’s tweet. https://twitter.com/JonHolb/status/1141083013528326151?s=20
In a further series of tweets (shown below), Mr Holbrook uses or approves offensive, demeaning terminology to describe LGBT people with reference to their ‘lifestyle’. This language of ‘lifestyle’ has been used historically to seek to deny LGB people human rights and protection under equality laws worldwide.
In the second illustrative tweet, Mr Holbrook likes a tweet in which the author adopts a position that “being gay etc. [sic]” is “just another lifestyle choice”.
In the third illustrative tweet, Mr Holbrook uses the acronym LGBTQ and repeats the use of ‘lifestyle’ but this time links it to ‘sex’, thus reducing LGBTQ people to sexual activity. It is a demeaning, reductionist approach which disappears other forms of same-sex attraction. This approach has also been used historically to discriminate against LGBTQ people.
Irish Travellers
In a tweet on 19 May 2015, Mr Holbrook retweeted a tweet from his former chambers, Garden Court Chambers. Garden Court announced that it had won a discrimination case against pub chain Wetherspoons for refusing to serve Irish Travellers. Mr Holbrook stated: “In the name of freedom publicans should be as free to exclude Irish travellers [sic] as Christians to refuse 2bake #GayCake”.
The statement about Christians refusing to bake gay cake may have referred to the case in Northern Ireland in which Mr Gareth Lee, a gay man, who was a member of a LGBT group in Belfast known as QueerSpace, ordered a cake with his design: a coloured picture of cartoon-like characters “Bert and Ernie”, the QueerSpace logo, and the headline “Support Gay Marriage”. At the time, same sex marriage was unlawful in Northern Ireland. The owners of the bakery were a Christian couple. They refused to bake the cake on the basis that the message was incompatible with their religious beliefs. Mr Lee claimed direct and indirect discrimination on grounds of sexual orientation, religious belief or political opinion. In the morning of 19 May 2015, the Presiding District Judge held that refusing to complete the order was direct discrimination on all three grounds.
The Christian couple appealed all the way to the Supreme Court which held that they were entitled to refuse to bake the cake on the grounds of their right to religious belief. There is no religious belief involved in refusing to serve Irish Travellers in pubs (or indeed in respect of any other activity covered by equality law). Mr Holbrook engages in false equivalence. Mr Holbrook provides no other reason for his position. It is a concerning position for a barrister to adopt because it suggests simply race-based discrimination.
Dismissiveness towards Black people and Irish people
This interpretation – that Mr Holbrook believes that some groups simply should not be afforded race-based protection – is reinforced in a tweet he posted on 1 February 2020. In this tweet, he comments on a tweet from the Mayor of London, Sadiq Khan. The tweet from the Mayor was posted shortly after the United Kingdom had left the EU. There were increased concerns that this would lead to further racism against minorities in the UK. The tweet from the Mayor of London stated: #LondonisOpen. It was accompanied by an image which stated: “Regardless of the colour of your skin, the colour of your passport, or the colour of your flag, London is open and always will be.” Mr Holbrook tweeted:
I’m so pleased we have the Mayor of London to remove all those signs saying “No blacks, no Irish & no dogs”.
Today’s racialists are just virtue signalling because they have no politics that can connect with people.
Mr Holbrook’s tweet again misrepresents the views of a person of colour (Mr Khan). Moreover, it conveys a sarcastic tone but one that is also dismissive towards Black people and the Irish for whom the ‘No blacks, no Irish & no dogs’ signs were visible manifestations in London in the post-War period of racial discrimination. The Mayor had not referred to taking down such signs. His message was clear: London remains open to you despite your skin colour or nationality. Yet, Mr Holbrook criticises Mr Khan as a “racialist” engaged in “virtue signalling” because he has “no politics that can connect with people”. Mr Khan was elected Mayor of London. His politics clearly connect with people. The message arguably served an important purpose: to reassure people who might feel vulnerable because of their skin colour or nationality that they would be welcome in London. Mr Holbrook disdains that view, and in doing so singles out dismissively Black people and Irish people (though, of course, they can be both).
This dismissiveness towards the experience of Black people is repeated in a tweet posted by Mr Holbrook on 30 July 2020.
As with Mr Holbrook’s tweets concerning Black women, Dr Shola Mos-Shogbamimu and June Sarpong OBE, Mr Holbrook engages in misrepresentation.
Mr Holbrook comments on a BBC News item titled ‘Black pupils face trebled exclusion rate in some areas of England’. Mr Holbrook’s tweet states:
Today’s “Britain is so racist” story from the BBC:
• Black pupils face trebled exclusion rate in some areas of England
• is due to racism, not the behaviour of excluded black pupils.
The first line diminishes the significance of the BBC report, condescendingly reducing reporting on disparities in education to an imagined dig at Britain. Setting aside the incoherence of referring on the one hand to Britain while also acknowledging on the other hand that the report pertains only to England, the tweet misrepresents the analysis reported in the BBC News item.
The item reports analysis from the House of Commons library. The BBC does not attribute the treble exclusion rate to the racism implied by Mr Holbrook. The analysis was commissioned by Layla Moran, Education spokesperson for the Liberal Democrats. She referred to the data: “The numbers in some areas may be small, but they still show black pupils are being disproportionately impacted.” She is also reported as stating: “The government must urgently review what is causing this gap and take action to ensure every child has an equal opportunity to thrive.”
Disparities in school exclusions with reference to ethnicity were not new in July 2020, and such disparities have been a concern in, at least, a number of recent government reports, including the Timpson Review of School Exclusion, 2019.
Mr Holbrook’s tweet is a misrepresentation of the BBC item and one which not only impliedly rejects racism as a basis for explaining such disparities but instead blames “the behaviour of excluded black pupils”. It is an approach – singling out of Black experience, misrepresentation of issues or statements by or about Black people, and criticism of Black people – which is appears to be part of pattern by Mr Holbrook.
5.2 CD5: You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession
Mr Holbrook’s tweet on 17 January 2021 (especially when seen in the context of other tweets, above, which show prejudice towards groups protected under the Equality Act 2010 and elsewhere) is likely to diminish the trust and confidence which the public places in Mr Holbrook as a barrister or in the profession.
A finding that a barrister has discriminated against a someone would be likely to diminish the trust and confidence that the public could place in that person. But even if Mr Holbrook were not found – on a narrow interpretation of CD8 – to have discriminated against someone in the strict sense required under the Equality Act 2010, his conduct in posting the tweet (and similar previous tweets which show consistency in prejudice), would be sufficient to breach CD5.
This is supported by the position adopted by Mr Holbrook’s former chambers, Cornerstone Barristers, in the two tweets set out above. The chambers voted to expel Mr Holbrook. The chambers also stated that they repudiate the contents of the tweet and all that it insinuates.
Other lawyers conveyed their view that Mr Holbrook’s tweet had the effect of diminishing the trust and confidence which the public could place in him and the damage it could do to the profession.
The following are a selection of illustrative tweets.
Edward Stanley, Director and Senior Counsel at Netflix, responded to the tweet sent by Alexandra Wilson (above) in reply to Mr Holbrook’s tweet, in part as follows: “<Adds another barrister to the do not instruct list>”
A wide range of barristers raised a series of serious concerns.
Matthew Richardson, Coram Chambers, wrote that the tweet was “completely unacceptable.”
A number of barristers responded in support of Alexandra Wilson’s tweet in which she stated, in part, that she was “embarrassed to be in the same profession as someone like this.”
Adam Wagner, Doughty Street Chambers, stated “I am also”.
Ceri White, 4PB, added: “I agree. Me too.”
David Turner QC, 4 New Square, replied to Mr Holbrook’s tweet and tagged in Kate Williams, Ruby’s mother: “This [emoji pointing upwards] is the most shameful tweet that _I_ have ever seen from a barrister. I am so sorry, @KateRoseWill – you and Ruby do not deserve this”.
Robert Levack, 187 Fleet Street, stated that he had reported Mr Holbrook to the Bar Standards Board.
Siobhan Tatum, Director of Northamptonshire Rights and Equality Council, wrote, in part, in response to Mr Levack’s tweet: “His whole account brings the profession into disrepute”.
On 31 January 2021, David Burgess, Publishing Director at The Legal 500, a research, ranking and publishing firm based in the UK, wrote that the firm had removed Mr Holbrook from their rankings. He added: “We could not continue to recommend him to potential clients, regardless of his previous work record.”
The foregoing evidence from a wide range of commentators, including barristers, strongly demonstrates that Mr Holbrook’s tweet was, in many ways, seen to diminish the trust and confidence which the public places in Mr Holbrook or in the profession.
5.2.i Undermining trust and confidence in a barristers’ obligations regarding equality
The public are entitled to expect that members of the Bar will uphold the Bar’s policies and adhere to the law on equality, especially – given the racial significance of the present matter – with reference to race in the Equality Act 2010.
The Bar Standards Board’s Anti-Racist Statement, November 2019, states: “We aim to dismantle barriers that inhibit true racial equality through our role as a regulator” (p. 4).
In view of Mr Holbrook’s tweet (and other tweets, above, showing similar prejudicial views), it is likely that this will diminish the trust and confidence which the public places in him or in the profession.
In Diggins, Mr Justice Warby set out a tribunal’s findings in relation to CD5, which included the following: ‘The public rightly expects the profession to promote equality and diversity and for its members to avoid language which is racially charged and derogatory to women’ [36]. The final ‘and’ in that sentence is not conjunctive. It would be sufficient to satisfy the expectation that barristers promote equality and diversity for them to avoid ‘racially charged’ language.
5.3 Gravity of the tweet
It is well-established in the case law on professional discipline that misbehaviour must attain a certain level of gravity before it can qualify as professional misconduct (Khan v Bar Standards Board [2018] EWHC 2184 (Admin)).
Mr Holbrook’s tweet cannot be dismissed as simply an “isolated, albeit negligent, lapse from acceptable conduct from the serious kind of culpability which attracts the opprobrium of a finding of professional misconduct” a phrase used in Khan [2018], and previously used in Walker v Bar Standards Board PC 2011/0219, 19 September 2013.
The conduct must be ‘serious’—not ‘trivial; “reprehensible conduct” Walker (2013), cited in Khan [2018]. It must not be ‘inconsequential’ or something that is “otherwise excusable” or ‘forgivable’ [Khan, [35]].
In Khan, Mr Justice Warby was careful not to set out a definitive, exclusive legal test of the gravity of conduct constituting professional misconduct. He accepted, however, that on the facts Mr Khan’s conduct met the criterion advanced by Mr Khan’s counsel; that it must be “seriously reprehensible”. Mr Justice Warby did not state that this is the “threshold criterion” for a finding of professional misconduct, which was the phrase used by Mr Khan’s counsel.
It is also clearly established in the case law that a single tweet can be sufficient to ground a finding of professional misconduct (Diggins v Bar Standards Board [2020] EWHC 467 (Admin)).
In the present case, Mr Holbrook’s tweet was made in public, on a public electronic platform, Twitter, which has millions of users globally. Mr Holbrook himself had, at the time of posting that tweet, 7,000 followers approximately. Anyone could retweet, reply to, or otherwise share his tweet. Hundreds of people, most of whom were not his followers, did so. It was not a message in a private members’ group.
This communication was, in a number of significant ways, more serious than the communications by Mr Khan in a barristers’ robing room, which led to his suspension from the Bar.
Mr Holbrook’s alleged misconduct can, as in Diggins and Khan, be established on the basis of one communication: his tweet of 17 January, but it is corroborated by previous similar prejudicial tweets which may also ground separate offences.
A significant number of persons responding to Mr Holbrook’s tweet raised concerns about content on his timeline. A careful assessment of that timeline confirms those concerns.
The communication was via social media, and fell within clear, unambiguous Social Media Guidance produced by the Bar Standards Board to guard against professional misconduct on platforms such as Twitter.
In Bolton v Law Society [1994] 1 W.L.R. 512 (CA), Sir Thomas Bingham MR (as he then was) explained the purpose of sanctions in a case against a solicitor. In part of that explanation he states: “A profession’s most valuable asset is its collective reputation and the confidence which that inspires.” In Hewson v Bar Standards Board [2021] EWHC 28 (Admin) Mr Justice Pepperall said that such principle and observation applies “just as much to disciplinary cases against barristers” [36].
6. Freedom of expression
A matter which must be addressed is whether Mr Holbrook’s tweet is protected by his right to freedom of expression from any disciplinary process?
Section 6(1) of the Human Rights Act 1998 provides that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right.”
The Bar Standards Board and Bar Tribunals and Adjudication Service (BTAS) (which administer the independent investigative tribunals hearing charges laid by the Bar Standards Board), are public authorities for the purposes of the Human Rights Act 1998.
The Convention rights referred to in the Act are those set out in the European Convention of Human Rights, which includes Article 10 on freedom of expression.
Article 10 provides:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
It is clear that Mr Holbrook has, in posting the tweet, held an opinion and imparted an idea within the scope of paragraph 1 of Article 10. It is, at this level, protected by Article 10(1).
Can the Bar Standards Board and BTAS discipline him for that tweet? In summary, theoretically yes.
The right to freedom of expression is not absolute: it is qualified, as is clear from Article 10(2).
It is significant that the first sentence of paragraph (1) refers to the freedoms in paragraph (2), stating: “The exercise of these freedoms, since it carries with it duties and responsibilities”. No other qualified right in the Convention features this immediate insistence on “duties and responsibilities”.
As stated, by Mr Justice Warby in Khan [58] (applied in Diggins): “An interference can only be justified if it is prescribed by law, and pursues a legitimate aim, and it is convincingly established that the measure in question is necessary and proportionate in pursuit of that aim.” This is the well-established approach to determining whether a restriction is lawful.
In Khan [2014], a Disciplinary Tribunal of the BTAS found that Mr Khan, a practising barrister, engaged in professional misconduct for what he said in the presence of other barristers in the robing room of a court. The Tribunal found that he breached Core Duty 3 and Core Duty 5. The particulars were – and I paraphrase here the facts set out by Mr Justice Warby – that Mr Khan did, on two occasions, in the robing rooms of two Courts in the Midlands, speak words that suggested to those who were present and heard him that a fellow barrister, X, had (a) stalked and then (b) raped another, female, lawyer who had been Mr Khan’s client and, (c) when she complained of this, caused serious threats to her life to be made, in an attempt to cover up what had taken place. All of the information that Mr Khan had about these matters came from his former client, Y, who was the complainant. Mr Khan did not name her in what he said, but he did name X. In between these episodes, Mr Khan sent two messages via LinkedIn to Z, X’s wife, alluding to the allegations against her husband.
Mr Justice Warby held that the disciplinary process in that case served “an important purpose by making clear to Mr Khan, to others in the profession, and to the public at large, that disclosures such as these are not an acceptable way to make use of sensitive personal information, with the potential to cause serious reputational damage” [65]. He continued: “This purpose corresponds to a pressing social need […] the pursuit of disciplinary proceedings was a proper and proportionate means of serving those needs” [65].
An independent disciplinary tribunal adjudicating on charges of professional misconduct brought by the Bar Standards Board decided in December 2019 that a barrister’s communications on social media can diminish the trust and confidence which the public places in individual barristers and the profession. In that case the communications comprised a series of tweets between 2017 and 2019, and a blog in 2019. The communications were:
- seriously offensive, abusive and publicly disparaging towards another barrister, including some which were directed at that barrister’s competence and reputation;
- obscene or seriously offensive in terms of the language used; and
- disparaging of the BSB’s regulatory process thereby undermining public trust and confidence in that process and thus in the profession.
The barrister was ordered to be suspended from practice for two years.
In October 2019, an independent disciplinary tribunal ordered that barrister Richard Miles be suspended from practice for ten months following charges of professional misconduct brought by the Bar Standards Board for offensive and disparaging comments about a member of the public on social media. The tribunal found that Mr Miles acted in a way which was likely to diminish the trust and confidence the public places in him or in the profession.
Mr Holbrook’s tweet served both to damage the reputation of Ruby Williams (and because of the impermissible association of the adjective ‘stroppy’ with the “teenager of colour” all other teenagers of colour). It also affected the right of teenagers of colour not to be subject to unlawful discrimination.
The case law of the European Court of Human Rights makes clear that there is no unqualified right to engage in communication where the aim is to degrade or insult a class of persons.
The European Court of Human Rights noted in Vejdeland v Sweden[1] (2012): “Restrictions on freedom of expression must […] be permissible in instances where the aim of the speech is to degrade, insult or incite hatred against persons or a class of person” [46]. Such restrictions are permissible with reference to rights of a racial group (here “teenagers of colour”) or for the protection of reputation (Tierbefreir E.V. v Germany, Application no. 45192/09) or of the right not to racially discriminated against.
The right to freedom of expression in relation to political debate is especially important. In Handyside v United Kingdom (1979-80) 1 EHRR 737 the European Court of Human Rights considered an Article 10 challenge by Mr Handyside following his conviction for obscenity. The Court said at [49]:
The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.
Citing Handyside, the European Court of Human Rights stated in Lingens v Austria (1986) that “freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention” (Application no. 9815/82 at [42]).
More recently, the High Court in Miller v College of Policing [2020] EWHC 225 (Admin) has cited with approval the statement by the European Court of Human Rights in Valnaj v Hungary [2020] EWHC 225 (Admin): “that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on the debate of questions of public interest” [47].
While the European Court of Human Rights has consistently held there is little scope under Article 10(2) for restrictions on political speech or on the debate of questions of public interest (Castells v. Spain, § 43), there is no political speech or public interest protection for communication that demeans another group on the grounds of race. Mr Holbrook is not a politician, journalist or academic for whom stricter scrutiny of any restriction may apply.
His tweet misrepresented the letter and spirit of the Equality Act in aid of demeaning “the teenager of colour”. He was not engaging in a protected critique of equality legislation. Mr Holbrook’s tweet ultimately targeted “the stroppy teenager of colour”. This language is also incompatible with the European Convention on Human Rights, Article 14 of which specifically provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as, inter alia, race or colour.
In M’Bala M’Bala v France (Application no. 25239/13), the European Court of Human Rights decided that a comedian who engaged in anti-semitic and Holocaust-denying communication could not rely on the right to freedom of expression. He had sought to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were incompatible with the letter and spirit of the Convention and which, if admitted, would contribute to the destruction of Convention rights and freedoms.
Mr Holbrook was not, as in Lewandowska-Malec v Poland (Application no. 39660/07) taking part in the discussion regarding “a matter of general interest to the community” where discussion “formed part of a political debate”: “the manner in which [a] mayor exercised his duties, including the management of public funds.” [61] Nor was the tweet equivalent to the protected political speech in Valnaj, the wearing of a five-pointed red star – the symbol of the international workers’ movement – by the Vice-President of the Workers’ Party (Munkáspárt) – a registered left-wing political party – as a speaker at a lawful demonstration in the centre of Budapest.
In any event the phrase “stroppy teenager of colour” is seriously offensive: expression which does not attract protection. It is not necessary that the speech be “grossly offensive” (see Handyside) before restrictions are justified in professional misconduct. Many of the cases on what is “grossly offensive” pertain to the criminal law – which raises distinct issues.
The likelihood that Mr Holbrook’s right to freedom of expression would not be dispositive in any challenge to a finding of professional misconduct gains strength from illustrative cases in Canada. There, a number of cases have addressed the line between the right to freedom of expression under the Canadian Charter of Rights and Freedoms and a regulator’s ability to regulate a profession. In Doré v Barreau de Québec [2012] 1 SCR 395, for instance, the Supreme Court of Canada dismissed an appeal from a lawyer against a decision of the Superior Court of Quebec upholding a decision of a disciplinary Tribunal against him.
Mr Doré had written a letter to a judge, which the Tribunal found was rude, insulting, and likely to offend. The Tribunal also found that the statements had little expressive value, and that the judge’s conduct, which resulted in a reprimand from the Canadian Judicial Council, could not be relied on to justify it. The Tribunal reprimanded Mr Doré and suspended his ability to practise law for 21 days.
In dismissing Mr Doré’s appeal, the Supreme Court held that the regulator’s decision did not violate his right to freedom of expression. While the general principle holds, these cases turn on the applicable law in Canada (which is distinctive in significant part from that in the UK) and its application to the facts (see Groia v Law Society of Upper Canada [2018] 1 SCR 772]).
7. Conclusion
This article set out public interest concerns about a tweet (and a series of similar prejudicial tweets) by a barrister in England and Wales which have led to calls that he be disciplined by the profession’s regulator, the Bar Standards Board. The principal tweet, in which he referred to a pupil as a ‘stroppy teenager of colour’, will very likely lead to a finding of professional misconduct and a sanction. The article assessed the likelihood of this finding with reference to existing decisions of disciplinary tribunals and case law in England and Wales, with supporting illustration from case law in Canada, and supporting evidence.
Hair policies in schools and workplaces have increasingly been challenged and remedied, especially among Black people in the US, and there is increasingly evidence that this is occurring elsewhere, including in the UK. While the barrister’s tweet was, at one level, purportedly about school discipline and school policy on hair, it is consistent with similar prejudicial views that he has expressed towards against Black people (especially women), LGBT(Q) people, and other minority ethnic groups (such as Irish Travellers and the Irish) – which corroborates concerns about the initial tweet and may give rise to separate charges by the Bar Standards Board.
The barrister’s subsequent justifications for the tweet draw upon conventional defences such as freedom of expression but this is unlikely, on the facts of the present case, to provide a defence to his phrase “the stroppy teenager of colour”.
The widespread reaction on social media against the tweet (and other tweets on the barrister’s timeline) from a large number of lawyers also shows an increased willingness among lawyers to publicly express their concerns about professional conduct of other lawyers. Professional disciplinary proceedings against barristers (or other legal professionals) have also increasingly attracted the attention, primarily because of tensions generally between regulation and independent practise, often linked to particular tensions between specific regulatory norms and freedom of expression. These tensions have increasingly been tested in court in England and Wales, consistent with developments in other jurisdictions such as Canada.
Continued use of social media and an escalation among some on the political right of what it is referred to as ‘culture wars’, ‘wokeism’, ‘cancel culture’ alongside their regressive tendencies to engage in prejudice means that these issues will likely continue to attract attention of regulators and others.
UPDATE
The Bar Standards Board (BSB) announced on 9 August 2021 that an Independent Decision-making Panel of the BSB considered two allegations that Mr Holbrook breached the BSB Code of Conduct.
The Panel decided in respect of one allegation that he breached the BSB Code of Conduct for posting a tweet which, it said, ‘could promote hostility towards Muslims as a group’.
The Panel decided that such behaviour was likely to diminish the trust and confidence that the public place in Mr Holbrook or the profession. The Panel imposed a warning and a fine.
The other allegation pertained to a tweet in which Mr Holbrook referred to ‘the stroppy teenager of colour’. This tweet was the subject of my analysis in the academic article above.
The BSB reports the Panel’s decision and reasoning regarding this allegation, as follows:
On 17 January 2021 at 9.34am [Mr Holbrook] posted a tweet which was designed to demean or insult a teenager, Ms A, and which may be considered distasteful or offensive by others.
The Panel took into account the content of the tweet and the circumstances in which it was tweeted. Mr Holbrook posted his tweet in response to a tweet from the Equality and Human Rights Commission which highlighted Ms A’s case as an example of how the Equality Act 2010 operates. The Panel considered that the language of the tweet in describing Ms A as the ‘stroppy teenager of colour’ was ill-advised and may give rise to offence. However, it accepted that Mr Holbrook was expressing his personal political opinion on a piece of legislation rather than intending to demean or insult another. The Panel noted that Mr Holbrook had posted other tweets criticising the Equality Act which did not form the basis of any allegation but were provided to the Panel for context. Taking all these factors into account and applying the test set out in Diggins v BSB [2020] and the guidance in gC25, the Panel concluded that Mr Holbrook’s behaviour in posting this tweet was not seriously offensive or discreditable to amount to a breach of CD5 or rC8.
My article must, therefore, now be read with reference to the decision of the BSB’s IDP. It is also necessary to note that after the article was published Mr Holbrook published a fuller explanation of his position.
I have some concerns about the decision and the reasoning of the Panel. I have requested from the BSB a copy of the full decision of the Panel in order to consider properly that decision and reasoning, and may write further on this matter here.
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Typographical corrections were made to this article on 24 August 2021. In addition, in order to clarify the intended original meaning of the article the word ‘theoretically’ was added to the final sentence in paragraph 7 of section 6, and the word ‘final’ was inserted immediately before the word ‘and’ in the penultimate sentence in section 5.2.i.
@Dermot Feenan 2021