Last week following an intense five-day trial in the High Court Mr Justice Warby reserved judgment in Birmingham City Council v Afsar and others. The case was compelling both in arguments of fact and law; and its magnitude cannot be underestimated or overstated. Over the course of the summer parent’s protests gained national media coverage and were debated in the House of Commons. The case involved issues concerning the right to protest, parental rights, freedom of religious expression, racial discrimination, both direct and indirect, the permissible limitations the Court could impose on the use of the internet and in particular social media communications.
After an interim injunction was granted in June 2019 an exclusion zone was placed around the Anderton Park Primary School. The Defendants challenged the legality of the Court’s Order. The interim injunction was also framed against ‘persons unknown’ i.e. anybody who came to properly know of it. This was criticised by the Fifth Defendant in particular, who is a blogger on religious expression and who successfully intervened in relation to the terms of the injunction curbing comment on social media.
The Council sought to challenge the Defendants right to protest by applying for a permanent injunction prohibiting protests outside the school. The Council further sought to extend the interim exclusion zone thus effectively banning any form of protest in the vicinity of the school or elsewhere in the local area. The Council argued the protests should be held in the City Centre or outside the offices of the DfE.
The Court heard evidence how the Council decided to bypass other relief available such as public space orders in favour of an injunction predominantly due to the alleged behaviour of the protesters. Such a move would have involved the Council having to undertake Equality Impact Assessments and in doing so to consult with the community. Instead the Council considered an injunction to be proportionate (and quicker). The Court heard evidence in support of the Council from the headteacher and deputy headteacher of Anderton Park Primary School. The School accepted that it had no prescribed lesson plans on which it had consulted parents but instead weaved into its equality teaching subjects touching on LGBT themes. This included the use of books such as “and tango makes three”, “mama, mummy and me” and “princess boy”. The significant point of dispute concerned whether the School had consulted with parents prior to implementing this teaching.
An important aspect of the case and the principal defence to the injunction was whether the School’s practice was discriminatory both indirectly and directly. There was a clear juxtaposition involving the religious beliefs of the parents, the majority (94%) of whom are British Pakistani Kashmiri Muslims, and their rights as parents to be consulted over any LGBT teaching practices at the school. It was argued by the Defendants that the acts and practices of the School in implementing the LGBT policies, failing to consult parents, referring to the protestors as homophobic and extremists and simultaneously sharing a platform with LGBT activists and inviting them onto the school premises whilst refusing to mediate with the protestors was discriminatory.
The Court also heard how the headteacher as a public authority figure should not be immune from abuse on social media and in any event an injunction brought by a local authority to prohibit abuse towards the headteacher was not the appropriate relief. It was argued that any abuse which concerns harassment, alarm and distress should be pursued through the criminal courts or the complainants should seek an alternative civil remedy through libel/slander.
Judgment is likely to be handed down within the next few weeks.
Ramby de Mello and Tony Muman appeared for Defendants 1, 2 and 3
Paul Diamond and Thomas Green appeared for Defendant 5
Both teams were gratefully assisted by Muhammad Ul-Haq (pupil)
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