Je suis Hilary

Foreign Shadow Secretary, Hilary Benn and a coterie within the Labour Party voted with the government for air-strikes on Syria. To do so they blackmailed their leader into giving them a free vote. Plumping for conscience outside parliament is not so easy. There is no right to freedom of thought and conscience in the British workplace. An application to the European Court of Human Rights to remedy this violation – and breach of the UK’s treaty obligations –  dead ends this month.

The BBC has been criticised for importing news about Syria – in bulk – from an erstwhile shopkeeper in Coventry. But thanks to the Corporation a black hole in the law which swallows ‘conscience cases’ has been discovered.

In Grainger Plc v Nicholson (2010), Justice Burton set out criteria for ‘philosophical beliefs’ deserving legal protection. Such beliefs must be genuinely held, transcend mere opinion or viewpoint, relate to a substantial aspect of life, attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society and not conflict with the fundamental rights of others

He found a belief that global warming posed a threat to humanity amounted to a philosophical belief and it would be unlawful to discriminate against Tim Nicholson, a climate change activist. Since then the courts have scrutinised a range of beliefs. Sounds progressive. In reality establishing a ‘philosophical belief’ as a shield for conscience is entirely futile.

The BBC is famous, far and wide, for its attachment to an elevated set of editorial and ethical values which underpin its public purposes. Its mission is “to inform, educate and entertain” and it envisions becoming the most creative organisation in the world. Staff must be loyal to this ethos referred to simply as “BBC Values”.

In its Respect at Work Review following the Jimmy Savile scandal the BBC gushed:

People expect more from the BBC. Our audiences and licence fee payers expect high standards of creativity, impartiality and distinctiveness. They expect us to behave with the utmost integrity and decency. They expect us to live up to our stated Values. They are right to do so…The BBC must be an organisation which lives and breathes its Values…The BBC Values are widely disseminated and published on our internal and external websites. They are printed on the back of most BBC identity cards. They represent a distillation of the essential mission and vision of the BBC and should be at the heart of everything the BBC does, and the way in which it conducts itself…Our staff and managers believe strongly in the BBC Values and are committed to trying to make the BBC a good place to work.

In February 2011, the BBC resisted a claim (Maistry v BBC) that it had discriminated against an employee precisely because he believed in BBC Values and defended them as a matter of conscience. A tribunal in Birmingham, chaired by Employment Judge Pauline Hughes, heard a less inspiring account of the values from the BBC. They were just a mission statement, nothing to believe in and certainly not a serious ‘philosophical belief’. At paragraph 9 of her judgment she noted:

It was the respondent’s case that the legislation could not have been intended to cover a belief of this nature because really it was no more than a “mission statement” i.e. a goal to aspire to, rather than a belief. The respondent’s representative argued that if the claimant was right, then it would follow that beliefs in the aims and values of a whole host of public organisations, if genuinely held, could amount to philosophical beliefs. By way of example, the respondent suggested that a belief that the aim of the NHS should first and foremost be to look after the health and welfare of its patients could, if the claimant were correct, amount to belief for the purposes of the 2003 Regulations, but it would be absurd for that to be the case. In oral submissions, the respondent’s representative went further, and suggested that if the claimant was correct to assert that he held a philosophical belief, this could extend the protection of the 2003 Regulations to employees of private commercial concerns who could seek to argue that they believed in their employer’s mission statement

The BBC’s cardinal value is trust. Yet it casually misrepresented BBC Values  at a tribunal and asserted it would be absurd to allow workers, even at the NHS, to challenge institutional and corporate hypocrisy. Judge Hughes rejected the BBC’s arguments (paragraph 18).

The BBC has a unique place in our society – it is partly funded by the public and it has public purposes, which set it apart from commercial providers of media services. Whilst I accepted that the public purposes set out in the Royal Charter and Agreement might fairly be characterised as idealistic in nature and/or as a “mission statement”, that does not negate the fact that the evidence before me was that those purposes arise because of a shared belief in the importance of public service broadcasting in a democratic society. I accepted that the claimant was right to argue that neither the 2003 Regulations nor Nicholson provide authority for the proposition that the public aims of an organisation cannot amount to a philosophical belief if those aims are the result of an underlying philosophical belief. It is worth noting that the aims include “sustaining citizenship and civil society, promoting education and learning and stimulating creativity and cultural excellence”. Those are weighty and substantial aspects of human life and behaviour.

Judge Hughes applied the criteria in Nicholson and found the claimant held a ‘philosophical  belief’ in the BBC Values. She described the belief as “a belief in the higher purpose of public service broadcasting”, effectively inserting a ‘conscience clause’ into journalist contracts at the BBC.

Ten BBC managers and a presenter gave evidence at a lengthy trial in February 2012 that went unreported. The BBC claimed it could not have known of the claimant’s belief and therefore could not have discriminated. The claimant responded in his skeleton argument.

The tribunal has described the Claimant’s philosophical belief (in short) as a belief in the higher purpose of public service broadcasting. The Respondent itself encourages such a belief. Its mission is to inform, educate and entertain. The first of its public purposes as set out by Royal Charter is to sustain citizenship and civil society. It has an embedded ethos built on BBC values that shape its relationship with the audience, its editorial content and its service of the public interest. These values include trust, independence, impartiality and honesty, truth and accuracy, and fairness. The BBC’s higher purpose is enshrined in these values, which are explicitly articulated and conscientiously defended. The Respondent denies that it could have discriminated against the Claimant as his philosophical belief was unknown to the managers involved. However all BBC employees are expected to follow these values.

Ignoring the criteria set-out by Justice Burton and massaging the BBC’s statement of values, the only piece of evidence cited, Employment Judge Hilary Harding concluded at paragraph 21 of her judgment:

The evidence before us from the respondent was that the BBC Values are a mission statement incorporating the following behavioural characteristics; Trust – the BBC is independent, impartial and honest. Audiences – are at the heart of what the BBC does. Quality – the BBC takes pride in delivering quality and value for money. Creativity – is the lifeblood of the BBC. Respect – each other and celebrate diversity so everyone can give their best and Working Together – one BBC where great things happen. That these were the BBC values was not challenged by the claimant and it seems to us therefore that the BBC Value are distinct from the belief which the claimant holds in the higher purpose of public service broadcasting , which has been found to be a protected belief

This is a circular argument beginning with the acceptance of the BBC’s declaration that its values are a mission statement. But it effectively decided the case.

Directing a London bombings 'special' from Leeds Trinity. The BBC could not recall broadcasting the program (14-7-2005).
Directing a London bombings ‘special’ from Leeds Trinity. The BBC could not recall broadcasting the program (14-7-2005).

In a further ruling however Judge Harding explained why there was no conflict between her judgment and that of Judge Hughes. She had not found that the BBC Values were a mission statement but that the BBC witnesses thought they were.

For the avoidance of doubt E J Hughes at the Pre-hearing Review found that the claimant did have a protected philosophical belief –namely a belief in the higher purpose of public service broadcasting and that when he referred to “BBC Values” this is what he meant. E J Harding’s tribunal, whilst acknowledging the claimant’s protected philosophical belief, found as a fact that the respondent’s witnesses understood the term to mean something different – namely the term referred to the BBC’s mission statement, known as the BBC Values, which emphasized the importance of certain matters such as Respect and Trust.

Although Judge Harding belatedly acknowledges a clash of values at the BBC, the basis of the claimant’s case, she sees no reason to revisit her original judgment. Several appeals later it was left to Lord Justice Underhill to dispose of the matter. His judgment given in the Court of Appeal last year side-steps both Judge Harding’s original and clarified judgments.

13. The Applicant’s essential answer, as I have said, is that it was impossible that the individuals in question could have been unaware of his belief in BBC values given that they are pervasive in the BBC, and perhaps also because he had, in the case of the disputes which gave rise to the acts of complaint or acts complained of, referred to those values, as the Tribunal acknowledged in the passage that I have read. But I am afraid to say that I do not believe that it is arguable that a generalised assumption that senior management employees will subscribe to BBC values can be equated with the knowledge that a particular employee has a philosophical belief in those values. That is not the same thing. The fact that to the applicant those values constituted a belief with similar status and cogency to a religious belief does not mean that will be so in every case. To others it might indeed be no more than their employer’s mission statement about the values that they were expected to observe at work.

In short the BBC managers involved could only be  capable of discrimination if they were aware of the  philosophical belief or if the claimant was a senior manager. But as a philosophical belief can only be established by a tribunal, an employer can always claim to be unaware of a philosophical belief at the relevant time. Going by the judgment, proving discrimination on the grounds of belief is impossible in Britain.

No appeal to the Supreme Court was allowed. An application to the European Court of Human Rights was refused in December last year. The Court does not have to give reasons. The file will now be disappeared and the UK’s breach of a treaty obligation quietly ignored.

The NUJ, the human rights industry, the busy left, Director Generals of the BBC, the legal establishment and the MSM have all chosen to ignore this infringement  of the European Convention on Human Rights. Fear is a factor. Opportunism and co-option are others. But the major reason is reflected in the applause given Hilary Benn for dazzling hypocrisy at the dispatch box. Je suis Charlie, Je suis Paris, Je suis Hilary.

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