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A former magistrate brought two cases to the Court of Appeal recently, following espousal of views relating to same-sex marriage. The first of those (Page v Lord Chancellor &amp & Anor [2021] EWCA Civ 254) involved his removal from the magistracy by the Lord Chancellor and the Lord Chief Justice.

The factual background

Richard Page had sat as a magistrate since 1999. He initially decided on criminal matters, but was in due course appointed to the family panel. Mr Page is a Christian; he interpreted those beliefs to mean that a same-sex couple should not be able to adopt a child as it was not in the child’s best interests. This was thrown into sharp focus when, at an unopposed adoption application, Mr Page communicated these views to the rest of the bench, refusing to sign the order which the court made.

Mr Page was found guilty of judicial misconduct, was reprimanded, and had to attend remedial training. However, this was not the end of the matter. A few months later, he gave interviews to a number of newspapers and appeared on BBC Breakfast talking about his reprimand. During the BBC interview, he said:

“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 parents.”

Following further discussion and panels, he was removed from office, having been once again found guilty of judicial misconduct.

The victimisation claim

Mr Page brought a claim in the Employment Tribunal, alleging that he had been subject to victimisation as a result of his speaking out about what he perceived to be discrimination based on his Christian beliefs. The relevant section of the Equality Act 2010 states that a person if subject to victimisation if she does a protected act, and is subject to a detriment because of that. The protected act claimed by Mr Page in this case was making an allegation that the Equality Act had been broken by reprimanding him. He claimed this was made during his BBC Breakfast interview.

As such, there were two consideration for the Tribunal:

  1. Whether Mr Page’s words had constituted an allegation of discrimination; and
  2. Whether the second round of disciplinary actions were because of that allegation.

The Tribunal decided to allow Mr Page to rely on the broadcast as a whole, rather than just his own words, to constitute the allegation he claimed to have made. However, despite this, they dismissed his claim

The appeal

Following an in-depth analysis of the Tribunal’s decision-making process, the Court of Appeal, through Underhill V-P’s leading judgment, concluded that Mr Page was not dismissed because he had complained about having been discriminatorily disciplined. The reason he had been dismissed was solely that he had made it clear that in the context of adoption he was not prepared to discharge his functions as a magistrate according to the law and the evidence (and had not acknowledged that his stance was mistaken).

In his supplement to Underhill V-P’s judgment, Jackson LJ gave a summation of the position of the court on magistrates who hold religious beliefs, which I reproduce in full as a matter of importance:

“Our system of justice owes a great debt to those who, like [Mr Page], give so much time and commitment when they sit as magistrates.  The fact that the magistracy contains individuals with differing backgrounds and beliefs is one of its strengths.  But once a private individual takes on a judicial role, he is subject to the same obligations as any other judge.  In this case [Mr Page] is not a victim.  He was not dismissed for complaining about his treatment but because he had shown himself incapable of honouring his undertaking, [..], to act as a magistrate in a way that was free from bias.”

Jackson LJ

Our lawyers’ views on the case of Page v Lord Chancellor &amp & Anor

Chris Hadrill, Partner in the employment team at Redmans, commented on the case: “This case shows that employees or officers (and, in particular, those holding public offices) will be expected to conduct themselves in a manner where, without large exception, they prioritise the requirement to undertake their roles professionally and impartially over any other extrinsic motivations.”

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/254.html

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