“I acknowledge and undertake: ◦ that it will be my duty to administer justice according to the law othat my actions as a magistrate will be free from any political, racial, sexual or other bias ◦ that I will be circumspect in my conduct and maintain the dignity and good reputation of the magistracy at all times in my private, working and public life.”
“… he knew his judicial duty was to do what was best for the child. He said that what was best for a child was being cared for by a man and a woman. That was his starting point. He argued that there had been so few same sex adoptions over such a short time that there was no reliable evidence on their outcomes”
“A man and a woman were the natural parents or the natural family for a child and in the best interests of the child. In certain circumstances adoption by a same sex couple might be appropriate if there was no other option.”
“We find that Mr Page does not appreciate the distinction between beliefs and judgment and that judgment requires that honestly held beliefs be put to one side to allow decisions to be made on the evidence put before the court.”
“We are seriously concerned about the level of prejudice displayed by you during this case. Despite your assertion that this was part of your decision-making process based solely on the best interests of the child, your assessment of this case was not based on evidence, but was, as you have admitted, influenced by your religious beliefs that two men could not be considered a natural family. We believe that you should have recused yourself from this particular matter because of your beliefs. Your conduct is significantly aggravated by the fact that you have failed to recognise at any stage of this investigation that discriminating against a couple on the grounds of their sexual orientation was both wholly inappropriate and contrary to the requirements of the Equality Act. Whilst we entirely accept that you are entitled to your personal religious beliefs, such beliefs cannot influence your judgment to the extent that this conflicts with your duties as a judicial office order to apply the law fairly and without prejudice. Your lack of insight and poor judgment are such that the Lord Chancellor and I do agree with the Conduct Panel's recommendation that you be given a reprimand. However, we also require that you receive remedial training on this before you resume sitting.”
“My responsibility as a magistrate, as I saw it, was to do what I considered best for the child and my feeling was therefore that it would be better if it was a man and a woman who were the adopted The transcript says “adopted”, but I suspect that the Appellant said “adoptive”. parents.”
“After diversity training, Richard was reinstated but says he finds it hard that his religious beliefs as a Christian were seen as prejudice. The Equality and Human Rights Commission heard from many Christians who felt pressured to keep their religion hidden at work or felt discriminated against when it came to wearing religious symbols or expressing their beliefs.”
“Dr Taylor found that there was a case to answer within the terms of rules 31 and 36 These are procedural provisions and do not themselves define any particular kind of misconduct. of the 2014 Magistrates Rules and recommended that the Conduct Panel be appointed to consider the complaints further. He said Mr Page appeared to have wilfully disregarded the advice and guidance previously given to him. He observed that the developments in the media could be construed as seeking to bring pressure on senior members of the judiciary to revoke their earlier decisions and, as such, this could be construed as conduct bringing the Magistracy into disrepute. Mr Diamond probed Dr Taylor’s reasons for determining there was a case to answer. Dr Taylor stressed that he was particularly concerned that Mr Page had not taken advice before speaking to the media. He also confirmed that his reasons were threefold, as set out at [29] of his witness statement, namely (a) Mr Page had failed to follow the advice he had been given regarding contact with the media; (b) the consequence of this was publicity negative to the Respondents, which could bring the judiciary into disrepute; and (c) the apparent breach of his judicial oath. In re-examination, Dr Taylor indicated that as regards (b), his concern related to the public nature of the criticism of the Respondents, rather than the content of the criticism. The Tribunal accepted that Dr Taylor gave a genuine and accurate account of his reasons.”
“… Mr Baker did not accept Mr Diamond’s proposition that the broadcast statement could not conceivably bring the magistracy into disrepute. He said that Mr Page was a magistrate, whose role it was to uphold the law, and his remarks on the broadcast could cause those seeing it to consider he would be motivated by factors other than applying the law and the evidence in the particular case. ... He also said that Mr Page’s conduct had raised a broader issue, not confined to the Family Panel, which he had made public, namely that he would not follow the law where he felt his beliefs conflicted with it. The Tribunal accepted Mr Baker’s evidence as an accurate articulation of the features leading to the Conduct Panel’s decision.”
“The Disciplinary Panel did not endorse the first of the Conduct Panel’s findings of misconduct. The contents of the Advice Note were guidance, so that failing to follow it could not amount to misconduct. However, the Panel agreed with the second finding of misconduct. Mr Page was ‘wholly mistaken’ to argue that his comments should be viewed as a dissenting judgment; the Panel was concerned with what was said in the BBC broadcast, months after the adoption case was heard. A Magistrate’s function, like any other judge, was to apply the law. Judges of all levels are forbidden from introducing evidence into cases and were required to decide them on the evidence presented at the hearing. The limited matters that ‘judicial notice’ could be taken of did not include matters of controversy. ‘It is the unanimous view of the Panel that by his comments transmitted via the BBC interview… he would undoubtedly have caused any reasonable person to conclude that he would be biased and prejudiced against single sex adopters. The fact that his opinion may be genuinely and honestly held is irrelevant. Similarly, Mr Page's religious persuasion is wholly irrelevant.’ The Panel said they did not make a recommendation to remove from office lightly, but the history of the matter, coupled with the ‘extremely damaging nature of the comments made, given the inevitable suggestion of bias, together with the lack of any apparent insight by Mr Page as to the effect of his comments meant there was no other option. The Panel noted that Mr Page confirmed his views had not changed and that he did not see any harm in relying upon ‘evidence’ acquired outside of the court hearing, which showed ‘a remarkable lack of judgment’.”
“Mr Diamond put to Mr Parry ... that there was no basis for finding that Mr Page’s broadcast statement could bring the judiciary into disrepute, that the sanction was punitive and that the Panel's decision had been influenced by the Claimant’s religious beliefs and/or the fact that he had criticised the Respondents’ earlier disciplining of him publicly. Mr Parry denied each of these propositions, reiterating the reasoning contained in the Panel report. He added: ‘I am a Christian District Judge, but I am a District Judge first and foremost when applying the law’. He went on to say that the Claimant’s Christianity was irrelevant to the decision made by the Panel and that they would have made the same decision if the same views have been expressed by a Hindu or by an atheist. It was the Claimant who had emphasised that he was a Christian, but that did not matter to the Panel’s decision, ‘it was his statement on national television and how that would be seen by a bystander. We judged it on that.’ He also emphasised that whilst the disciplinary history had been considered when it came to sanction, the decision as to whether there was misconduct was based only on the BBC broadcast. The Tribunal accepted that Mr Parry’s evidence was an accurate description of the Panel’s reasoning.”
“We have considered the reports and your representations which have been provided to us with great care. We agree with the disciplinary panel’s finding that the comments you made in a BBC interview broadcast on national television in March 2015 would have caused any reasonable person to conclude that you would be biased and prejudiced against single sex adopters. We believe that by making such comments you have brought the magistracy into disrepute and that this is a matter of serious misconduct. We also note that you were given a reprimand for serious misconduct in December 2014. You also received remedial training, and guidance from your Bench Chair in February 2015 regarding the importance of speaking to the Judicial Press Office before you had any contact with the media. Had you sought advice from the Judicial Press Office as recommended by your Bench Chair you would undoubtedly have been advised of the risks involved in undertaking such an interview. The Declaration and Undertaking signed upon appointment to the magistracy states that a magistrate will be circumspect in their conduct and maintain the dignity, standing and good reputation of the magistracy at all times in their private, working and public life. Your actions have breached this undertaking and you have demonstrated a serious lack of sound judgement. In order to maintain confidence in the magistracy I am writing to inform you that the Lord Chief Justice and I have agreed that you will be removed from judicial office with immediate effect.”
“(1) A person (A) victimises another person (B) if A subjects B to a detriment because — (a) B does a protected act, or (b) … (2) Each of the following is a protected act — (a)-(c) … (d) making an allegation (whether or not express) that A or another person has contravened this Act. (3)-(5) …”
“The comments made by Mr Page which the Respondent considered to ‘bring Magistracy into disrepute [sic]’ amounted to an allegation that Mr Page was discriminated against and/or harassed in breach of theEquality Act 2010 ... Making those comments was therefore a ‘protected act’ unders. 27 (2) (d) of the Act ... The consequent disciplinary proceedings and/or the sanction against Mr Page (removal from the Magistracy) were therefore victimisation in breach ofs. 27 (1) of the 2010 Act .”
“As we have indicated when addressing the direct discrimination allegation, the Respondents and the Conduct Panel and the Disciplinary Panel made the decision to remove the Claimant because he chose to advertise the bias he would apply in the exercise of his judicial functions via the BBC: [130] and [135] above. The Claimant’s broadcast statement in that respect was not a protected act and they did not act because of any protected act, but for the reasons they gave contemporaneously.”
“The Tribunal has already indicated it accepted that the removal decision was made for the reasons given by the Conduct Panel, the Disciplinary Panel and the Respondents: [67], [71]-[72], [75] and [76] above. The Tribunal was quite satisfied that the evidence established that the Respondents’ decision was based on the Claimant publicising on BBC television that his starting point or presumption as a Magistrate was that adoption by same-sex couples was inherently less good for a child than adoption by a father and a mother, irrespective of the evidence in the particular case; and, in turn, that this was a breach of his judicial oath and declaration and was such as to give rise to a perception in reasonable people that he would apply a preconceived and biased view, incompatible with the actions of a judicial office holder. It was made clear that, by contrast, his religion was not in point, nor was the fact that he held certain beliefs: [55], [67], [71], [72] above.”
“Applying the distinction identified and discussed at [84]-[94] above The reference to paras. 84-94 of the Reasons is to a discussion of an issue which does not arise on this appeal, though it does in the NHS appeal: see paras. 68 and 74 of my judgment there. , the Tribunal concluded that the finding of misconduct and the decision to remove the Claimant were based on his inappropriate conduct in publicly displaying a preconceived bias towards same-sex adopters in relation to his judicial role, contrary to the declaration and oath and likely to bring the judiciary into disrepute and thereafter showing no insight or remorse or willingness to accept that his conduct was inappropriate for a judicial office holder.”
“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.”
“In considering the issue of the ‘severability’ of parts of the protected acts as defined insection 27 of the Equality Act 2010 , and required by Martin v Devonshire [2011] the Tribunal failed: a. to analyse fully why the protected act was severable b. misapplied Martin v Devonshire c. failed to correctly applyArticle 10 of the ECHR (to make a public statement) as required by s.3 of the HRA 1998.”
“The EAT has erred in its analysis of ‘severability’ of particular aspects of the protected act under Martin v Devonshires Solicitors”
“It acknowledged … that the fact that [the Appellant] had made complaints of sex and disability discrimination … formed part of the facts relied on by the Respondents in deciding to dismiss her. But it did not believe that it followed that that was part of the Respondents’ ‘reason’ for dismissing her in the sense required by the authorities … . Rather, what the Tribunal sought to determine was what it was about the Appellant’s conduct, including the making of those complaints, which motivated the Respondents to dismiss her; and it was that which it treated as their ‘reason’ in the relevant sense. Following that approach it found that the reason had nothing to do with the fact, as such, that the Appellant had made complaints of discrimination, but rather with the facts that those complaints involved false allegations of considerable seriousness, that they were repeated and that the Appellant refused to accept that they were false; the relevance of those facts being, taken together, that they led to the conclusion that she had a mental illness which was likely to lead to unacceptably disruptive conduct in future. To put it another way, it found that the reason for the dismissal was that the Appellant was mentally ill and the management problems to which that gave rise; and that the significance of the complaints was as evidence of that fact.”
“The question in any claim of victimisation is what was the ‘reason’ that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable [emphasis supplied].”
“Of course such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the antivictimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purports to object to ‘ordinary’ unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately made in some cases does not mean that it is wrong in principle.”
“[T]he distinction made by the Tribunal in reaching its conclusion as to the Respondents’ reason for dismissing the Appellant ought as a matter of principle to be regarded as legitimate. The distinctions involved may appear subtle, but they are real; and they require to be recognised if the anti-victimisation provisions, important as they are, are to be confined to their proper effect and not to become an instrument of oppression. This is an area of law where, alas, the questions to be answered cannot always be straightforward – not so much because the law is complex as because of the complexities of legislating for the subtleties of human motivation.”
“The EAT has erroneously conflated the Respondents’ ‘reason’ for the detrimental treatment of the Claimant with their ‘motivation’ (EAT [50] et seq). The distinction between ‘reason’ and ‘motive’ is essential in discrimination law: see R (E) v JFS[2010] 2 AC 728 ; Amnesty International v Ahmed[2009] UKEAT 0447/08 . A benign motive for detrimental treatment is no defence to a claim for direct discrimination or victimisation.”
“It was well-established long before the decision in the JFS case that it is necessary to make a distinction between two kinds of ‘mental process’ (to use Lord Nicholls' phrase in Nagarajan - see at p. 884F) - one of which may be relevant in considering the ‘grounds’ of, or reason for, an allegedly discriminatory act, and the other of which is not.”
“The distinction is real, but it has proved difficult to find an unambiguous way of expressing it. … At one point in Nagarajan Lord Nicholls described the mental processes which were, in the relevant sense, the reason why the putative discriminator acted in the way complained of as his ‘motivation’ (see p. 885 E-F). We adopted that term in [Amnesty International], explicitly contrasting it with ‘motive’: see para. 35 (p. 1470 E-F). Lord Clarke uses it in the same sense in his judgment in the JFS case: see paras. 137-8 and 145 (pp. 158-9). But we note that Lord Kerr uses ‘motivation’ as synonymous with ‘motive’ – see para. 116 (p. 155) – and Lord Mance uses it in what may be a different sense again at the end of para. 78 (p. 148). It is evident that the contrasting use of ‘motive’ and ‘motivation’ may not reliably convey the distinctions involved – though we must confess that we still find useful and will continue to employ it in this judgment. …” (2) The second case is CLFIS (UK) Ltd v Reynolds[2015] EWCA Civ 439 ,[2015] ICR 1010 . At para. 11 of my judgment I said: “As regards direct discrimination, it is now well-established that a person may be less favourably treated ‘on the grounds of’ a protected characteristic either if the act complained of is inherently discriminatory (e.g. the imposition of an age limit) or if the characteristic in question influenced the ‘mental processes’ of the putative discriminator, whether consciously or unconsciously, to any significant extent: … The classic exposition of the second kind of direct discrimination is in the speech of Lord Nicholls in Nagarajan v London Regional Transport[2000] 1 AC 501 , which was endorsed by the majority in the Supreme Court in the Jewish Free School case,[2009] UKSC 15 ,[2010] 2 AC 728 . Terminology can be tricky in this area. At p. 512A Lord Nicholls uses the terminology of the discriminator being ‘motivated’ by the protected characteristic, and with some hesitation (because of the risk of confusion between ‘motivation’ and ‘motive’), I will for want of a satisfactory alternative sometimes do the same.” “It was well-established long before the decision in the JFS case that it is necessary to make a distinction between two kinds of ‘mental process’ (to use Lord Nicholls' phrase in Nagarajan - see at p. 884F) - one of which may be relevant in considering the ‘grounds’ of, or reason for, an allegedly discriminatory act, and the other of which is not.”
“The distinction is real, but it has proved difficult to find an unambiguous way of expressing it. … At one point in Nagarajan Lord Nicholls described the mental processes which were, in the relevant sense, the reason why the putative discriminator acted in the way complained of as his ‘motivation’ (see p. 885 E-F). We adopted that term in [Amnesty International], explicitly contrasting it with ‘motive’: see para. 35 (p. 1470 E-F). Lord Clarke uses it in the same sense in his judgment in the JFS case: see paras. 137-8 and 145 (pp. 158-9). But we note that Lord Kerr uses ‘motivation’ as synonymous with ‘motive’ – see para. 116 (p. 155) – and Lord Mance uses it in what may be a different sense again at the end of para. 78 (p. 148). It is evident that the contrasting use of ‘motive’ and ‘motivation’ may not reliably convey the distinctions involved – though we must confess that we still find useful and will continue to employ it in this judgment. …” “As regards direct discrimination, it is now well-established that a person may be less favourably treated ‘on the grounds of’ a protected characteristic either if the act complained of is inherently discriminatory (e.g. the imposition of an age limit) or if the characteristic in question influenced the ‘mental processes’ of the putative discriminator, whether consciously or unconsciously, to any significant extent: … The classic exposition of the second kind of direct discrimination is in the speech of Lord Nicholls in Nagarajan v London Regional Transport[2000] 1 AC 501 , which was endorsed by the majority in the Supreme Court in the Jewish Free School case,[2009] UKSC 15 ,[2010] 2 AC 728 . Terminology can be tricky in this area. At p. 512A Lord Nicholls uses the terminology of the discriminator being ‘motivated’ by the protected characteristic, and with some hesitation (because of the risk of confusion between ‘motivation’ and ‘motive’), I will for want of a satisfactory alternative sometimes do the same.”
“162. While the Court has admitted that it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection ofArticle 10 of the Convention (see Vogt, cited above, §53, and Guja, cited above, §70). It therefore falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 § 2. In carrying out this review, the Court will bear in mind that whenever a civil servant’s right to freedom of expression is in issue the ‘duties and responsibilities’ referred to in Article 10 § 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim (see Vogt, cited above, §53, and Albayrak v. Turkey, no. 38406/97, §41,31 January 2008 ). 163. Given the prominent place among State organs that the judiciary occupies in a democratic society, the Court reiterates that this approach also applies in the event of restrictions on the freedom of expression of a judge in connection with the performance of his or her functions, albeit the judiciary is not part of the ordinary civil service (see Albayrak, cited above, §42, and Pitkevich, cited above). 164. The Court has recognised that it can be expected of public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called in question (see Wille, cited above, §64; Kayasu, cited above, § 92; Kudeshkina cited above, §86; and Di Giovanni, cited above, §71). The dissemination of even accurate information must be carried out with moderation and propriety (see Kudeshkina, cited above, §93). The Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties (see Kudeshkina, cited above, §86, and Morice, cited above, §128). It is for this reason that judicial authorities, in so far as concerns the exercise of their adjudicatory function, are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges (see Olujić, cited above, §59). 165. At the same time, the Court has also stressed that having regard in particular to the growing importance attached to the separation of powers and the importance of safeguarding the independence of the judiciary, any interference with the freedom of expression of a judge in a position such as the applicant’s calls for close scrutiny on the part of the Court (see Harabin, cited above; see also Wille, cited above, §64). Furthermore, questions concerning the functioning of the justice system fall within the public interest, the debate of which generally enjoys a high degree of protection under Article 10 (see Kudeshkina, cited above, §86, and Morice, cited above, §128). Even if an issue under debate has political implications, this is not in itself sufficient to prevent a judge from making a statement on the matter (see Wille, cited above, §67). Issues relating to the separation of powers can involve very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate (see Guja, cited above, §88). 166. In the context ofArticle 10 of the Convention , the Court must take account of the circumstances and overall background against which the statements in question were made (see, mutatis mutandis, Morice, §162). It must look at the impugned interference in the light of the case as a whole (see Wille, cited above, §63, and Albayrak, cited above, §40), attaching particular importance to the office held by the applicant, his statements and the context in which they were made. 167. Finally, the Court reiterates the ‘chilling effect’ that the fear of sanction has on the exercise of freedom of expression, in particular on other judges wishing to participate in the public debate on issues related to the administration of justice and the judiciary (see Kudeshkina, cited above, §§99-100). This effect, which works to the detriment of society as a whole, is also a factor that concerns the proportionality of the sanction or punitive measure imposed (see Kudeshkina, cited above, 99).”
“160. The key consideration is the articulation of principle contained in these authorities … . The ECtHR expressly recognised that whilst there may be circumstances in which judges have an Article 10 protected right to make public pronouncements, the same only extends to the making of moderate and proper statements and in particular it does not extend to the making of statements that compromise the office holder’s judicial impartiality. As we have already indicated, this was not the case with Mr Page’s public statements. 161. We have also noted earlier that the fairness of the process involved may be relevant to proportionality: [111] above. In this instance we consider that our findings of fact show that the Claimant was afforded a very fair and transparent process, which enabled him to know the concerns raised, the material relied upon and afforded him multiple opportunities to give his response. 162. Accordingly, in all the circumstances the Tribunal concluded that the finding of misconduct and the imposition of the sanction of removal from the Magistracy was plainly a proportionate limitation upon the Claimant’s right to freedom of expression … and as such would be regarded as necessary in a democratic society.”
“It was not the Claimant's views on same-sex adoption which either ‘exclusively or preponderantly’ prompted the Respondents to remove him, but the clear indication emerging from those views that he would not be impartial in any adoption decision where same-sex adopters were involved. In our view, the Respondents are correct to say that, in the circumstances of this case, Article 10 was not engaged at all.”
“The EAT’s analysis of the issues underArticle 10 ECHR is in contradiction with the judgment of the Court of Appeal in Ngole … In particular: (a) In Ngole, the decision-maker considered that a student’s Facebook posts expressing his belief that homosexuality was sinful might bring the profession [the claimant was on a social work course] into disrepute because of the risk of public perception that Mr Ngole’s beliefs could cause him to discriminate against homosexuals if he qualified as a social worker. There is a parallel with this case, where the Claimant’s publicly stated views have been deemed to undermine his fitness for the office, give rise to a perception of bias, and bring the judiciary into disrepute. (b) The Court of Appeal has condemned the approach of the decisionmaker who ‘wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that “homosexuality is a sin”) does not necessarily connote that the person expressing such views will discriminate on such grounds’ (para. 5 (10). The same reasoning applies in this case, mutatis mutandis: the Claimant’s public statement was wrongly taken to mean that he would be biased as a Magistrate. (c) In the (overturned) High Court judgment in Ngole, like in this case, a substantive restriction on Article 10 rights was disguised as an issue of personal/professional fitness for the office. The Court of Appeal has rejected that approach in Ngole. This undermines the EAT’s crucial reasoning in this case.”