In Our Defence: Freedom of Speech in the UK Biosecurity State

‘The struggle of man against power is the struggle of memory against forgetting.’
— Milan Kundera

In January of this year, ASH received a letter from the Architects Registration Board (ARB), a body created by The Architects Act 1997 to be the regulator of UK architects. It’s job is to enforce The Architects Code: Standards of Professional Practice. Of the 12 standards, 8 lay out an architect’s obligations to their client or how to manage their business. Only Code 5.1, ‘Considering the wider impact of your work’, could be said to have anything to do with the social and and environmental dimension of architecture, and this has been changed through successive versions to accommodate the creeping neo-liberalisation of architecture in the UK. As a result, the ARB has largely confined itself to naming and publicly shaming individual architects who have fallen foul of their business obligations, while allowing large practices to collude in turning UK housing into a deposit box for global capital without censure or comment.

Until now. In the climate of fear, hysteria, denunciation and censorship unleashed in the UK by the Government’s dictatorial response to the coronavirus crisis, the ARB has found a new realm in which to abuse its authority. Over the past 5 months, ASH has been under investigation by the ARB for statements I have made on social media about the coronavirus crisis. This investigation has carried a threat that ranges from a fine of up to £2,500 to a temporary suspension or permanent erasure of the right of my co-director and ASH’s lead architect, Geraldine Dening, to practice in the UK.

It was immediately apparent to us that this was a crudely disguised attempt to silence the publication of my writings about the UK biosecurity state, at the least by shutting down our Twitter account, and at worst by removing the financial basis to the work of Architects for Social Housing. I’m happy and — given the virulence of the smear campaigns authorised by our Government and media — relieved to say that this attempt has failed; but I don’t expect it to be the last. I have decided, therefore, to publish documents relating to our defence against the accusations made against us by the ARB. These include my witness statement in defence of Geraldine Dening; submissions made by Francis Hoar, the barrister acting on our behalf; and the ARB’s final decision.

Silence is always on the side of power. To make a comparison germane to the accusations made against us, the informants from whom the Gestapo drew their power over the population of the Third Reich were largely not held accountable for their actions when that constitutional dictatorship was defeated. While we still can, therefore, I believe it’s important that the social-media trolls, anonymous informants and institutions collaborating with the UK biosecurity state should be exposed for their cowardly and contemptible actions.

More importantly, though, the information contained in the submissions of Francis Hoar is, in my view, enormously important in showing that — contrary to the ideology of political correctness and the orthodoxies of identity politics — causing ‘offence’ is not a crime. Indeed, the case law assembled here by Francis Hoar shows that the freedom to offend the enemies of reason without fear of censorship, slander, threats, fines, arrest or imprisonment is the cornerstone of our freedom of expression under UK law. It is this freedom, along with other human rights and civil liberties, that are under threat today by the regulations, programmes and technologies of the UK biosecurity state, which on the justification of protecting us has effected our transition from a (nominally) liberal democracy to a society in which anyone failing to comply with Government dictates can be denounced as a threat to public health and threatened with the loss of their livelihood and even their liberty.

It is an irony — which I imagine was lost on the investigating officers of the ARB — that in seeking to remove our economic independence from the state on the justification of their real or feigned offence at the comparisons I made between the biosecurity regulations of the Third Reich in the 1930s and those of the UK biosecurity state today, they they were repeating the Regulations for the Elimination of Jews from German Economic Life that were made into law in 1938 — following which ‘state, regional and municipal officials, acting on their own initiatives, also promulgated a barrage of exclusionary decrees in their own communities’. But irony, as George Orwell long ago observed, is the enemy of fascism. I hope those of you facing similar and worse threats to your livelihood from your employer or regulator — whether private company or public institution — will find some benefit from the information in these texts, and the strength to keep on resisting this dictatorship.

Witness Statement of Simon Elmer

Table of Contents

1. Introduction and Context
2. The Allegations of the Architects Registration Board
3. My Reply to the Accusations
4. The Threat to our Human Rights and Civil Liberties
5. Allegations of Bringing the Profession into Disrepute and the Reputation of ASH
6. The Identity of the Complainant and his Malice Towards ASH
7. The Character and Career of Geraldine Dening

1. Introduction and Context

My name is Simon Elmer, and I am the co-founder of Architects for Social Housing, for which I am head of research. I am not an architect, but a former lecturer with a PhD from University College London in the History and Theory of Art and Architecture. I am the primary author of the articles published by Architects for Social Housing. I am also the exclusive user of the @9thfloor Twitter account, which I use primarily to publicise those publications. Finally, I am the author of the tweets under investigation by the Architects Registration Board (ARB). At the request of Geraldine Dening, the co-founder of Architects for Social Housing (ASH) and its lead architect, I am writing in response to the ARB’s accusations against our organisation.

I want to start with the context within which these accusations have been made. During the first few years of the Iraq War, I was a Visiting Professor in the Department of the History of Art and Architecture at the University of Michigan, USA. One of my courses there was a lecture series on Modernism in the 20th Century, which I delivered twice a week over the whole of the academic year from September to April. This was a public lecture, and in addition to the 150 students officially attending my course, members of the public were free to attend. As the conclusion of the course drew near, I felt it was necessary to draw some lessons from the history of modernism I had delivered and apply them to the present historical moment.

The Battle of Falujah, the joint US-British offensive and for them the bloodiest battle of the entire war, had been fought the previous term. But with the blanket ban on media coverage of the fighting imposed by the US and UK governments, the papers and news were instead full of carefully-staged photographs of generals and heroic soldiers in various poses of victory. As a professor teaching a course on, among other things, the politics of representation, I felt it my duty to draw comparisons and make connections between the aestheticisation of imperialist warfare that the German critic, Walter Benjamin, had identified as one of the characteristics of 1930s fascism, and the similar practices being employed by the media and governments of the invading forces of the US and UK.

I knew this would be risky. At the time, the University of Michigan was ranked the 6th best university in the world, and its fees were expensive even by US standards. My students were almost universally drawn from the children of very wealthy parents, and they had been raised and indoctrinated with the ideology of American exceptionalism as crusaders for democracy and the policemen of the world. But, to their credit, the lecture went down well. My graduate student instructors, who were in the early years of their PhDs, said it was my best lecture of the series. Others, however, had a different opinion.

At the end of the year, students were invited to make comments on the course they had completed and the professor delivering it. I received overwhelmingly positive responses to this course, but there was one response that was far from complimentary, and as always, it’s those that one remembers best. I was, in this anonymous student’s judgement, ‘a disgrace to the history of art and the academic profession and should be banned from teaching again’. The reason, I could glean from the rest of their comment, was that art, in their opinion, had nothing to do with politics and that, worst of all, in my lectures I had dared to mention the name of Karl Marx!

When one speaks to a large audience over whose composition one has no control, it is inevitable — unless what you are saying is of little interest — that someone, somewhere in that audience will be offended, outraged even, and, if they are of the necessarily vindictive state of mind, will wish you ill for what they perceive as a personal insult. In my experience as a lecturer in both the UK and the US, it is invariably the students or members of the public who think they know the most, but in fact know the least, that respond in this way. The challenge to one’s uniform preconceptions is never easy to accept, particularly when it comes from someone you perceive to be in a position of authority, or who has knowledge of the subject they’re talking about greater than your own, but which leads them to an opposite conclusion. But that’s the nature of education.

Given the content of what I was teaching, I wasn’t surprised by this student’s response, but it gave me pause. Unlike in the UK, professors in the US are considered pillars of the community, particularly at such a wealthy university. And yet this undergraduate student’s response clearly contained a threat. I was, after all, in a foreign nation that was at war. Of more concern, when I had searched online for photographs of the real and bloody cost of the Battle of Falujah to Iraqi civilians, rather than the images of US and UK triumph, I found a website devoted to documenting the consequences of this war. It was, unsurprisingly, written in Arabic; and having downloaded one or two photographs for my lecture, the site was suddenly frozen, and a message came up across the screen marked ‘US Homeland Security’ informing me that my accessing of this website had been noted and recorded ‘for security reasons’. I began to wonder if I would ever be able to leave the country again and return to the UK.

We now know that the Iraq War was waged on the justification of Government lies, to both the British Parliament and British public, about so-called Weapons of Mass Destruction that never existed and which the security services of the UK and US invented for the media. Yet it was only in May 2005 that a report in the Sunday Times, dated July 2002, some 5 months before the invasion, quoted the head of MI6 telling his counterparts in Washington: ‘The Intelligence and facts were being fixed around the policy’. In the nearly two decades since, we have seen the rise of what the US calls the Security State, which on the justification of protecting us from terrorism has removed more and more of our rights through Acts of Parliament. Over the past 20 years there have been no less than 12 terrorism Acts, amendments and measures brought into UK law that have progressively stripped us of more and more of our human rights and civil liberties, and subjected us to greater surveillance, monitoring and control.

But that isn’t all that has changed. The voices of those who know least, who think they know most, and who wish to silence anything that challenges their views of the world, have become louder, more aggressive, more violent, more threatening. They have also, by parallel Acts of Parliament, been granted greater power over those with whom they disagree. Or rather, more accurately, their disagreement has been used by successive governments to reduce and threaten our Freedom of Speech. Between 1998 and 2016,  5 Acts of Parliament on so-called ‘anti-social behaviour’, crime and policing, including the Investigatory Powers Act or ‘Snoopers’ Charter’, have vastly increased the State’s power of surveillance and control over its citizens. Perhaps the key term in this two-decade long assault on this fundamental human right is that of causing ‘offence’. Under the guise of protecting the public from speech which, quite rightly, is limited in its freedom by how it limits the freedoms of others, speech which is even suspected of causing ‘offence’ to anyone else is now reduced to, and policed and prosecuted as, a form of ‘hate speech’.

The more than 425 coronavirus-justified Statutory Instruments made into law over the past year have only increased this power of the UK state over its citizens. The UK is now the surveillance capital of Europe, with the Investigatory Powers Act cited by the Chinese Government in December 2015 in defence of its own programmes and technologies of surveillance. Indeed, Edward Snowden — the former US National Security Agency contractor turned whistle-blower, described the Act as the ‘most intrusive and least accountable surveillance regime in the West’.

This is the historical, political and legal context in which the accusations against Architects for Social Housing and me have been made. Under these contexts, I could never give the lecture I gave in the lecture hall at the University of Michigan in 2005, for fear of offending anyone in my audience, be they students or members of the public. I would risk, as lecturers risk today, being dismissed from my post. For questioning the Government’s justification for waging war on Iraq, I could be accused of spreading ‘misinformation’ that endangers lives. For sharing facts about the number of Iraqis killed by the invasion, I could be accused of ‘anti-Semitism’ by Zionist lobbyists. For employing the methodology of historical materialism to teach students the relationship between economics, politics and images, I could be accused of promoting ‘extremist views’. All this is true now. All this is now possible, not only under British law, but in the climate of censorship, media-manufactured hysteria, Government lies, and the monitoring of the opinions of the population by social media. Now, it is no longer just the slow kid at the back of the class that is calling me a disgrace, it is the self-appointed moral guardians of social media. And their calls to have me silenced and banned are no longer confined to student feedback forms, but are listened to, taken up and being used by organisations with legal power to silence anyone who dares to question the lies of our media and governments — on the justification that they may cause offence by doing so.

The kind of response I received from the anonymous student in 2005 is one I receive on my Twitter account regularly. Fortunately, they are many times outweighed by the hundreds of positive responses to my writings and posts — to which I will return later. It should be clear to anyone who can distinguish debate from abuse that such responses are not attempts to engage in the former. They are, quite simply, an attempt to slander, discredit and ultimately to silence me. My response, therefore, is simple. I ‘hide’ the comment and block its author. The rise of social media, the legislative creep of censorship, and the encouragement of slander in our culture has exaggerated the impact of such trolling over the past twenty years; but that does not mean that those of us they try to silence should cower in fear at the threat they present to rational debate.

2. The Allegations of the Architects Registration Board

One can imagine my surprise and concern, therefore, when, in January of this year, we received and have continued to receive the same accusations, not from Twitter trolls who could be blocked and ignored, but from investigating officers from the Architects Registration Board (ARB). These accusations have been as follows:

In a letter dated, 27 January, 2021, Viviana Schejtman, an ARB Investigations Officer, wrote to Ms. Dening with the opinion that ‘several of the comments’ published on my @9thfloor Twitter account contain what she described as:

a. ‘offensive and insensitive remarks about the Holocaust’

She went on to assert that these comments:

b. ‘compare the Holocaust to the current restrictions imposed by the Government to contain the Covid‐19 pandemic’.

Then, on 17 March, 2021, Ms. Dening received an e-mail from Ms. Schejtman, informing us that the ARB had concerns that I had:

c. ‘made statements connecting the recent COVID health restrictions with the treatment of Jews in Nazi Germany’

Finally, on 29 April, 2021, Ms. Dening received a letter from Matthew Harding, another Investigations Officer, asserting that:

d. ‘the Twitter post of 20 June inappropriately used religious imagery to encourage others to breach COVID-19 legal restrictions; and

e. ‘the Twitter post of 20 December inappropriately compared the actions of the government and its agencies in response to the COVID-19 pandemic, to those of the Nazi regime in 1940s Germany.’

It can be seen from these, therefore, that on each occasion I have been accused of different actions which different investigations officers have chosen to interpret in different ways. As the Investigations Panel will understand, this makes it difficult to respond to this flurry of accusations. So let me start by trying to bring some clarity to these assertions.

First of all, let’s look at the actions themselves. I have, in turn, been accused by the ARB’s investigating officers of:

a. Remarking
b. Comparing
c. Connecting
d. Using imagery
e. Comparing (again)

The ARB will be aware that all these actions are protected under Article 10, Freedom of Expression, of the European Convention on Human Rights, which states:

‘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.’

Like most human rights, however, this is a qualified right, with the Freedom of Expression qualified as follows:

‘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 none of the letters and e-mails received from the ARB has any accusation been made that I have broken the law. However, in the first accusation made against me in the letter of 29 April, Mr. Harding has accused me of encouraging others to ‘breach COVID-19 legal restrictions’. I will return to this below. There is also no indication from Mr. Harding that the ARB is seeking to restrain my Freedom of Expression in the interests of national security, territorial integrity of public safety, for the prevention of public disorder or crime, for the protection of health or morals, for preventing disclosure of confidential information, or the maintaining of the impartiality of the judiciary. But, although neither investigating officer has stated as much, it appears that the ARB feels that the Twitter posts under investigation endanger the ‘reputation of others’, and have therefore:

• ‘brought the profession into disrepute, contrary to Standard 9.2 of the Architects Code: Standards of Professional Conduct and Practice.’

My point in clarifying my legal position is to show that all the actions of which I am accused — remarking, comparing, connecting and using imagery, which are those of a writer, researcher, analyst and publicist I am — are protected under Article 10 of the European Convention on Human Rights, and that they can only be interfered with on the conditions listed in Paragraph 2 of Article 10. The only grounds the ARB has for interfering with my protected right to Freedom of Expression, therefore, is the interpretation of the significance of those actions by the investigating officers of the ARB.

So I want to look at the interpretations offered by these two officers. Unfortunately, I can find nothing on the ARB website about the qualification of either officers to make these interpretations. Neither appear to have a degree or any other training in any subject relating to semantic or visual interpretation, in the history of the period about which they make such wild assertions, or, indeed, in the coronavirus-justified legal and legislative restrictions under which we are living. It is not surprising, therefore, as I will show, that their interpretations do not even deserve the description of ‘subjective’; but are — either deliberately or through a lack of knowledge — inaccurate and wrong.

3. My Reply to the Accusations

Accusation (a) On the use of the term ‘holocaust’, from the Latin holocaustum, I refer you to the study by Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive (1999). A translation of the Greek holocaustoma, meaning a ‘burnt offering’, it was used by the Fathers of the Christian Church to translate the complex sacrificial doctrine of the Bible. But it was also used by them as a polemical weapon against the Jews, to condemn blood sacrifice. During the pogroms of the Middle Ages, the term was increasingly used to describe massacres of Jews in Europe. The semantic history of the word ‘Holocaust’, therefore, is essentially Christian, and its continued use in the Twentieth and Twenty-first Century to describe the systematic killing of millions of Jews and other ‘subjects of the state’ under the Third Reich attempts to dehistoricise, sanctify and ultimately obscure the causes and mechanisms of what was a historically, politically and legally contingent series of events. For this reason, you will never find this word used in any of my writings except in quotation marks, as I have used it here, to designate its use as such a form of obfuscation. It is, perhaps, for this reason, that the filmmaker, Claude Lanzmann, used the Hebrew word Shoah, meaning ‘devastation’ or ‘catastrophe’ for the title of his documentary film, which sought to wrestle the extermination of Europe’s Jews from this Christian doctrine of sacrifice and redemption and relocate it within its historical circumstances. Like Lanzmann, I am a historical materialist by training and in practice. If readers of my writings find my methodology ‘insensitive’ and ‘offensive’, I cannot be responsible for the misconceptions they bring to what is inaccurately and, I would say, anti-Semitically called ‘The Holocaust’.

Accusation (b) Even if I accepted this obfuscating use of the term ‘Holocaust’, the assertion that I compared the systematic murder of millions inaccurately designated by this term to what Ms. Schejtman calls ‘restrictions imposed by the Government to contain the Covid‐19 pandemic’ is a nonsensical statement. It is a matter of record that the withdrawal of health care, diagnosis and treatment under restrictions justified by the coronavirus has resulted in thousands of deaths from cancer, heart disease, dementia and the other primary causes of death in the UK; that the restrictions on our human rights and civil liberties designated by the umbrella term ‘lockdown’ has had, and continues to have, a devastating impact on the lives, jobs, businesses, education, mental health and future prospects of tens of millions of UK citizens; and that under the cloak of these restrictions the Government and its financial partners have ushered us into the most authoritarian form of government in modern British history; but to compare this to what Ms. Schejtman calls ‘The Holocaust’ is a nonsense you won’t find in any of my writings or postings on Twitter or elsewhere.

Accusation (c) In response to this interpretation, Ms. Dening sent, on my behalf, my article titled The New Normal: What is the Biosecurity State? (Part 2. Normalising Fear), which I had published in August 2020. This is the second part of an 82-page study, the first published on 31 July under the title The New Normal: What is the Biosecurity State (Part 1. Programmes and Regulations). Here I had begun by recalling the historical precedents, in France primarily but also in the UK, for the use of emergency powers to override our fundamental rights and freedoms. My aim in doing so was to show that, contrary to the widely stated falsehood, repeated by Government Ministers and disseminated in the media, that we are facing an ‘unprecedented’ times and circumstances that require ‘unprecedented’ restrictions on our rights and freedoms, emergency powers have been used repeatedly, and above all by democratic governments. As a historian, I am always and rightly suspicious when those in power start claiming we are in a moment about which history can teach us nothing. The call to forget history is always made in the service of power. But there are very few things that history cannot teach us. Indeed, I was educated to believe that we study history precisely in order to learn from it, rather than stumbling around without memory in the apparently unprecedented newness of the present.

For the same reason, in the second part of my study I began by looking at the historical precedents for the ‘biosecurity state’. This is a term I took from the Italian philosopher, Giorgio Agamben, who in turn derived it from the work of the French philosopher, Michel Foucault. I do not have time here even to summarise its history for the ARB, but its most recent application has been by the UK Government to such newly-formed organisations as the Joint Biosecurity Centre, which advises the Government on lockdown restrictions but whose analysis and arguments for doing so are unavailable for scrutiny by either the public or Parliament. It is my contention, as it is of Giorgio Agamben and a great number of writers and thinkers analysing the drastic changes to our legal status as citizens under formerly parliamentary democracies, that we are now living in a biosecurity state. And as I did with the emergency powers, I looked at the historical precedents for this.

The most obvious and historically significant precedent is that of the Third Reich between 1933 and 1945. I will not repeat here the arguments I made in this article, which drew from Mr. Harding the single response that I ‘stand by the posts’ I made; but I note that nowhere in the conditions qualifying my Freedom of Speech under Article 10, paragraph 2 of the European Convention on Human Rights does it say that I am not allowed to draw lessons from (what Ms. Schejtman clumsily and inaccurately describes as ‘connecting’) two moments in history in which new forms of government imposed biosecurity restrictions and obligations on their respective populations.

Ms. Schejtman is free, under the same Article 10 protection, to disagree with my thesis, but neither she nor Mr. Harding have shown that they have even engaged with the article in which I develop and discuss my thesis. But even if they did engage with my article and felt a need to express their points of disagreement with it — and even, should they wish, develop an alternative thesis, supported, as mine is, with philosophical arguments, historical documentation and with reference to the wide contemporary discourse around the history of biopower, biopolitics and biosecurity — the place to do this, surely, would be a symposium, conference or academic forum, and not a court of law in which they have the power to threaten me with sanctions, fines and slander simply because they disagree with me. Such is not the forum for reasoned, discursive debate between respectful interlocutors engaging in debate, and I am appalled that Ms. Schejtman has been allowed by the ARB to initiate such a scenario in order to impose her unargued, uninformed, preconceived, apparently entirely subjective and what appears to be gravely prejudiced opinion with the effect of interfering with my Freedom of Expression under Article 10. Unlike Ms. Schejtman, I believe it is imperative that we learn from history, that we draw comparisons between its moments, that those of us fortunate enough to have the knowledge and capacity to do so share those lessons, even when, as is happening more and more in the UK and across the world, they face censure, slander, censorship and punishment for doing so. As regulators of the architectural profession, I would hope that the ARB is equally committed to doing so.

Accusation (d) I now come to the last two accusations made against me, which constitute those the ARB has indicated they will go ahead and investigate. The first is, perhaps, the most unsupported, indefensible and inaccurate of the accusations yet made against me, based on an interpretation, I presume by Mr. Harding, that is as flawed as that of Ms. Schejtman. Here I will refer to the image I posted on the @9thfloor Twitter account on 20 June. This shows the Yellow Star imposed on ‘subjects of the state’ living under the Third Reich who had been defined, under the so-called Nuremberg Laws, to be Jewish. As I wrote about in considerable detail in my second article on The New Normal, this design had emerged from the identification system for prisoners first developed in Dachau concentration camp in 1935, where different coloured triangles designated those imprisoned. These included political prisoners, including communists, anarchists, socialists, social democrats and trade unionists, those designated ‘anti-social’, religious pacifists, emigrants, homosexuals, Romani, as well as those designated by the first supplemental decree to the Nuremberg Laws, issued on 14 November 1935, as part of a Jewish ‘race’, no matter what their religious beliefs. The Yellow Star, therefore, was in its origin part of a biopolitical system of identification, discrimination, incarceration and humiliation in no way exclusive to Jews. It was, presumably, a sick joke of the administers of this biopolitical system to fashion the Yellow Star reserved for those designated as Jews from two of the triangles used for those other ‘subjects of the state’ deprived of their citizenship.

To call this emblem, therefore, as Mr. Harding does — whether from his own interpretation or on behalf of the ARB — ‘religious imagery’ is not only bordering on a grave insult to those who were forced to wear it, but historically inaccurate. I really wonder that the ARB has allowed such a bizarre statement to be made in its name.

But there is even less credit from the second part of his accusation against me, that I used this ‘religious imagery’, as it is inaccurately described, ‘to encourage others to breach COVID-19 legal restrictions’. This accusation is not a bizarre interpretation, it is factually wrong. Over the Yellow Star, I had imposed the text and logos published by Transport for London on their website, which they encouraged passengers either to download onto their mobile phones, or to print out and carry with them, and show to anyone authorised by The Health Protection (Coronavirus, Wearing of face Coverings on Public Transport) (England) Regulations 2020, to require them to do so. As it very clearly says, those carrying or displaying this text and accompanying Transport for London and Mayor of London logos are ‘exempt from wearing a face covering’. Under these Regulations, which have been qualified and added to by subsequent amendments but not superseded in this respect of law, the bearer of this image is not required to state what their exemption is. However, in the text I wrote to accompany this image, I clarified that under Regulation 4, Paragraph 1, Section a, Exemption (ii), a person is exempt from wearing a face covering on public transport if it causes them ‘severe distress’.

Rather than encouraging others to breach COVID-19 Regulations, therefore, I was doing the exact opposite, which was informing people of their legal rights under those regulations. It’s a sad fact that this information is lacking in the literature and signs that Transport for London displays and makes available on its services, and perhaps, because of this, Mr. Harding is unaware of the Regulations he accuses me of encouraging others to break. In fact, throughout the coronavirus crisis in the UK I have published numerous articles in which I discuss, clarify and explain the Acts of Parliament and hundreds of Statutory Instruments made into law on the justification of this crisis. Indeed, I have devoted an entire article, The Science and Law of Refusing to Wear Masks, to the legality of enforcing face coverings on the British population under UK law, which I update as each new statute is made.

It was in the context of its publication, when face masks had just been imposed on the UK public, and there was so much confusion and misinformation about our obligations to comply, whether it was Government guidance or enforceable law, what our rights were, what exemptions existed and how we declared them, that I posted this image and the accompanying text. I am, therefore, familiar with the legality of face coverings, and was sharing that knowledge with those who wished to learn what they were not being told by the Government, media, London Mayor and Transport for London. Encouraging others to break the law is a serious charge, and I ask Mr. Harding to withdraw it. As a regulatory body, the ARB should be careful and deliberate before making such allegations.

Accusation (e) Finally, I come to the last accusation against me. This is that in a Twitter post of 20 December I ‘compared the actions of the government and its agencies in response to the COVID-19 pandemic, to those of the Nazi regime in 1940s Germany.’ There appears to be a basic misunderstanding in this accusation about the meaning of the word ‘compare’. It does not mean to ‘conflate’. It does not mean to ‘reduce’. It does not mean to ‘erase the differences between’, which is precisely what Mr. Harding has done. In the texts that make up this post, I have taken care to retain these differences, not to reduce the one political system or government to the other, and not to conflate the actions of the agencies I mention. Once again, Mr. Harding’s interpretation of what I wrote in this post is reduced to his observation, for which he provides no argument beyond his own assertion, that my post is ‘inappropriate’.

Thus, I ask the ARB to consider what I wrote, and see whether Mr. Harding’s interpretation of it is factually and semantically accurate. The order in which they appear in the screen-grab sent to us by Ms. Schejtman are not that in which they were wrote, which is as follows.

In the first text of this post I wrote:

‘In 1945, Allied officers produced a report on the Institute for Ancestral heritage (Ahnenerbe), an SS think-tank composed of over 100 of Germany’s leading professors and scholars.’

This is a very brief summary of the historically factual information contained in the Wikipedia page on the Ahnenerbe to which I attached a link in this post.

In the second text of this post I wrote:

‘Between 1935 and 1945, the research of the Ahnenerbe was used by the Govt of the NSDAP to justify its eugenicist and biopolitical policies, which like today were implemented through laws made under a permanent State of Emergency that lasted 12 years.’

Again, these are all statements of historical fact, with the one exception, necessitated by the character limit on Twitter posts. This is that the UK has not declared a State of Emergency under the Civil Contingencies Act 2004, but has initiated what the Coronavirus Act 2020 calls an ‘emergency period’. The Government has then used the Public Health (Control of Disease) Act 1984 (as amended in 2008) to impose (at the time of writing) 94 of the 427 coronavirus-justified Statutory Instruments. These have all been imposed under the ‘emergency procedure’ that allows the Government to make secondary legislation without a draft having been laid before, and approved by a resolution of, each House of Parliament, without proof of its justification or proportionality, without an assessment having been made of its impacts, and without public consultation.

In the third text of this post I wrote:

‘Whether it’s SAGE, Imperial College or the LRB, scientists, academics and writers collaborating with an authoritarian Govt to justify a biosecurity state that removes our civil liberties to “protect” us from an imaginary threat is neither new nor normal.’

This was a reference to my article, The Betrayal of the Clerks: UK Intellectuals in the Service of the Biosecurity State, which I published on 12 December, and in which I discussed how the discourses and institutions of medicine, letters and education had given scientific legitimacy, intellectual credibility and practical implementation to the regulations, programmes and technologies of the emerging UK biosecurity state that for over a year now has removed our civil liberties on the justification of protecting us from SARS-CoV-2. Nobody who has any knowledge of how lockdown restrictions have been justified, imposed and enforced can deny that the Scientific Advisory Group for Emergencies and its SPI-Modelling subgroup, which includes 5 academics from Imperial College London including the by-now infamous Professor Neil Ferguson, has been responsible for advising the Government on when to impose restrictions and for how long. And some of us have conducted considerable research into the financial links between the members of SAGE and the pharmaceutical industry, which should the ARB wish to it may read about in my articles.

However, this is not what I have been accused of by the ARB. What I have been accused of is ‘comparing’ the actions of the Government and its agencies ‘to those of the Nazi regime in the 1940s Germany’. It should be clear to anyone capable of reading that my texts in the post under investigation do nothing of the sort. First of all, the actions of the ‘Nazi regime’, as Mr. Harding refers to the Third Reich, between 1940 and 1945 are enormous in scope, and so broad an accusation is so lacking in specificity and clarity as to be meaningless. However, even were Mr. Harding to take the trouble to specify what actions he means, my text makes no comparison: not even according to the misuse of the term as he employs it, and certainly not according to the correct meaning of the term I clarify above. What my text quite clearly states is that the collaboration of scientists, academics and writers with authoritarian governments in order to justify a biosecurity state that removes our civil liberties has a long history.

I maintain that anyone with any knowledge of history would find it hard to deny the truth of this statement, and that anyone who has studied, as I have, the history of biopower, biopolitics and biosecurity in the works of Foucault, Agamben and their numerous commentators would find it impossible. Again, if Mr. Harding wishes to formulate an alternative thesis he may do so, and perhaps submit it to an academic journal for publication. Should they accept it, I would be able to respond to it in writing. But, once again, the place to conduct such debate is in the forums proper to historical debate, not before a professional regulator.

However, the purpose of my post was not merely to make this statement about the history of biopower and its current rise to dominance. My point was to take that history as a warning of where we are in danger of heading, if we have not already arrived there: to learn from history, in other words, and not to suppress it, as the young anonymous student tried to do in that University of Michigan lecture hall back in 2005. It is of considerable concern, and not only to me, that not only our media but also our academics and what might tentatively be called our intelligentsia have shown themselves willing to collaborate with this erasure of history, and to refuse to learn the lessons it has to teach us at this moment in history when they most need to be remembered.

It is in this regard that, to this last text, I attached a link to the documentary film, Hitler’s Search for the Holy Grail, which was first screened in 1999 as a Secret History Special on Channel 4. The focus of this film is on the Ahnenerbe to which I referred in the other texts, but more generally on the collaboration of German academics, scientists, doctors and intellectuals with the Third Reich. At the end of the film, the respected historian and documentary-film-maker, Professor Michael Wood, interviews Colin Renfrew, then Professor of Archaeology at the University of Cambridge, about the lessons to be learned from this collaboration, and he says:

‘I think it’s tragic the way archaeology is misused. I can well see that every nation likes to look back on its past, and emphasise that it has a past of its own. What I think is to be laid at the door of archaeologists and anthropologists is that they didn’t, after the Second World War, really sort out the issues of ethnicity. The whole thing was so horrid, the Holocaust was so ghastly, that everybody walked away from the issue. And they didn’t really analyse carefully that ethnicity — the notion of who a people is — is very much what a people wants to be, and is not really to be demonstrated or proved from something deep in prehistory. And I’m afraid archaeologists were very late in saying it. They’ve only been saying it the past five years or so. I’m afraid, as academics, we didn’t grasp the nettle with sufficient vigour. So, yes, it does trouble me.’

Professor Renfrew’s focus is his own discipline, and its collaboration with the Third Reich; but his point is applicable to other disciplines and other times. He was speaking in 1999, during the resurgence of ethnicity as a political force in Europe, and he wasn’t afraid to refer to the role of ethnicity under the Third Reich to draw lessons for the present. I wonder whether, if he did the same today, Professor Renfrew would be accused by Twitter trolls of racism and other deliberate inversions of his statements. I think, undoubtedly, he would.

A more recent reflection on the collaboration of intellectuals with the Third Reich, and one more specific to the accusation made against me, is the article by Omar S. Haque, Julian De Freitas, Ivan Viani, Bradley Niederschulte and Harold J. Bursztajn, titled ‘Why did so many German doctors join the Nazi Party early?’, and published in the International Journal of Law and Psychiatry, vol. 35, issues 5-6 (September-December 2012). In her response to Ms. Schejtman’s e-mail of 17 March, Ms. Dening included a link to this article in her reply. Unfortunately, neither Ms. Schejtman nor Mr. Harding show any evidence of having read its very informative and instructive arguments about the susceptibility of the medical profession to the biopolitical doctrines of National Socialism. Again, I cannot summarise these arguments here, and I strongly recommend a reading of the article to the investigatory board; but I will quote its concluding statements, which draw lessons from the collaboration of doctors with the Third Reich to the present day. The authors write:

‘The causes of the brutalities committed by the Nazi doctors with such self-righteous, methodological efficiency — acts that have reverberated for years since — continue to elude many historians and psychologists. Nevertheless, identification and analysis of the vulnerabilities and other factors that fuelled this behaviour can guide us toward prevention of future abuse by highlighting the conditions that make physicians susceptible to misapplications of medical research, medical practice, and medical ethics.  

‘Such analyses also provide vital case studies for teaching medical ethics more effectively. To the extent that we can understand and teach about the context and motives that surrounded physicians’ abandonment of the Hippocratic Oath in favour of Nazi ideology and inhumanity, the teaching of bioethics can cultivate essential practical insight. Such insight is necessary to identify one’s own vulnerability to seductions of abandoning the Hippocratic Oath, as well as principles such as beneficence and respect for the autonomy of the “other”. Alas, such seductions arise with some regularity in the ever-changing biopsychosocial (not to mention economic) landscape of clinical practice.

‘Moreover, thorough analysis of these vulnerabilities and factors provides lessons in what has been termed ethicogenesis, i.e., harm caused under the banner of self-righteousness, in the name of such ethical values as public health or even medical ethics itself. Unimaginable as the medicalisation of genocide may seem today, the perversion of ethical principles is no more confined to the historical past than are demoralisation, economic insecurity, a need to belong and conform, and the search for a quick fix to existential problems. George Orwell’s admonition in 1984 that “He who controls the past, controls the future” is well worth remembering, so that education in medical ethics will not omit the pitfall of invoking ethics themselves as a rationalisation for perpetuating crimes such as those that were enabled by the German Medical Society.’

Even more recently, in September 2019, the 3-part BBC series Rise of the Nazis was televised in the UK. One of those interviewed was Richard Evans, the former Professor of History at the University of Cambridge and author of a trilogy of acclaimed studies on the Third Reich, the first two volumes of which are titled The Coming of the Third Reich: How the Nazis Destroyed Democracy and Seized Power in Germany (2003) and The Third Reich in Power, 1933-39: How the Nazis Won Over the Hearts and Minds of a Nation (2005). In Part 1 of the series, titled ‘Politics’, Professor Evans reflects on the political lessons to be learned from the Third Reich:

‘German politics between 1930 and 1933 is the story of the decline and fall of a democracy. And that’s why we’re so fascinated, because we know what happened afterwards. Germans at the time didn’t know what was going to happen. But we know now, looking back, what a terrible turning point it was. And, of course, democracy is under threat in many countries at the moment. We’re looking for parallels. That period does have lessons for us, if we want to preserve and defend democracy in our own day.’

In Part 3, titled ‘Night of the Long Knives’, Professor Evans identifies some of the specific political and legal procedures that allowed the Third Reich to emerge and their resurgence today:

‘Democracies require, first of all, popular support and popular belief in institutions such as a free press, an independent judiciary, democratic elections. The echoes that we find in our own time of the Nazi seizure of power are in a number of different areas. Emergency powers, for example, and emergency decrees, the State of Emergency that allowed them to put their own plans into action without any serious opposition.’

It is hard to be certain of anything in the climate of hysteria, fear and censorship under which we live in the UK today, but I assume that the ARB would not accuse Professor Renfrew, Professor Evans, and the authors of the article published in the International Journal of Law and Psychiatry of making ‘inappropriate’ remarks by making these statements in public forums, or assert that in doing so they had brought their respective professions into ‘disrepute’. Yet this is what the ARB appears to have accused me of doing in their letter of 29 April, 2021, and about which the ARB Investigations Panel is now considering submitting to a Professional Conduct Committee. I find this concerning and deeply worrying for the future freedom of intellectual debate in this country.

4. The Threat of our Human Rights and Civil Liberties

On 12 May, 2020, I published an article titled ‘The State of Emergency as Paradigm of Government: Coronavirus Legislation, Implementation and Enforcement’, in which I published a chronology and analysis of the Acts of Parliament, Statutory Instruments and Government programmes made into law, implemented and enforced between 10 February and 11 May, 2020. Few reading this article could deny that the word ‘authoritarian’, which I used in this Twitter post to describe the kind of governments with which intellectuals have collaborated throughout history to justify the removal of our civil liberties, is also applicable to the current UK Government. And in the year since I published this article, that authoritarianism has only grown, to the point where we are now facing a Parliamentary Bill, the Police, Crime, Sentencing and Courts Bill, that will effectively allow state officials to ban any protest, which is widely regarded as one of the founding principles of any democratic society, and its suppression as one of the measures of an authoritarian government.

Indeed, in response to the removal of our human rights and civil liberties using what Professor Evans identified as ‘emergency powers’ and ‘emergency decrees’ issued under a (de facto) ‘State of Emergency’, one of the UK’s most eminent and respected legal minds, Jonathan, Lord Sumption, a former Justice of the Supreme Court, has repeatedly used the word ‘authoritarian’ to describe the current UK Government. Perhaps the most decisive and instructive example of his use of this term was in the Cambridge Freshfields Annual Law Lecture he delivered on 27 October, 2020, under the title ‘Government by Decree: COVID-19 and the Constitution’. Again, I cannot summarise the numerous indictments and criticisms Lord Sumption makes in this lecture against the UK Government and what he describes as the unlawful use of powers conferred by the Public Health (Control of Disease) Act 1984, which I recommend to the Investigations Panel, but I will quote his concluding remarks:

‘This is how freedom dies. When societies lose their liberty, it is not usually because some despot has crushed it under his boot. It is because people voluntarily surrendered their liberty out of fear of some external threat. Historically, fear has always been the most potent instrument of the authoritarian state. This is what we are witnessing today. But the fault is not just in our government. It is in ourselves. Fear provokes strident demands for abrasive action, much of which is unhelpful or damaging. It promotes intolerant conformism. It encourages abuse directed against anyone who steps out of line, including many responsible opponents of this government’s measures and some notable scientists who have questioned their empirical basis. These are the authentic ingredients of a totalitarian society.

‘The British public has not even begun to understand the seriousness of what is happening to our country. Many, perhaps most of them, don’t care, and won’t care until it is too late. They instinctively feel that the end justifies the means — the motto of every totalitarian government which has ever been. It is difficult to respect the way in which this Government’s decisions have been made. It marks a move to a more authoritarian model of politics which will outlast the present crisis. There is little doubt that for some ministers and their advisers this is a desirable outcome. The next few years is likely to see a radical and lasting transformation of the relationship between the state and the citizen.’

For these and other criticisms of the interference with our human rights and civil liberties by coronavirus-justified regulations, the man widely recognised as the UK’s foremost authority on constitutional law has been attacked on social media, slandered in the mainstream media, and even criticised by members of the legal profession; but, even if he were still a Supreme Court Justice, there has been no accusation that in making these comments he has brought the legal profession into ‘disrepute’, let alone that he should be banned from practicing law. The reasonable assumption among sensible, rational persons is that, even when we disagree with someone, we express our disagreement without resorting to wild, inaccurate and slanderous allegations deliberately misrepresenting what we disagree with in order to discredit its author.

I want, finally, to return to the first of the two posts being considered for submission, and the legislation under which UK citizens can legally claim exemption from wearing a face covering on public transport. I have already discussed the inaccuracy — and, indeed, the inappropriateness — of describing the Yellow Star as a ‘religious symbol’, and have argued that it is, instead, what it was historically: part of a system of identification, discrimination, incarceration and humiliation. When the Regulations enforcing face coverings on public transport first came into force on 15 June, 2020, there was widespread resistance to what was immediately felt to be their actual function. I won’t here go into the numerous medical studies and clinical trials that have shown that medical masks, let alone cloth coverings, have no effect on stopping the transmission of a virus, or the numerous medical studies that show the dangers they present to the physical and mental health of wearers; but, from the start, it was the reasonable belief of many that enforcing face coverings was an act of discrimination, effectively banning those who did not comply from the use of public transport — unless, of course, they were aware of the exemptions they could claim.

Since then, subsequent Regulations have extended this act of discrimination to all public buildings and many public spaces, including shops, shopping malls, museums, offices and other places of work. But this imposition of medically meaningless and even dangerous measures did not stop at masks, but was quickly followed by the so-called ‘Track and Trace’ programme, in which customers and employees were compelled, first by guidance and then by law, to hand over their personal details as a condition of access to their place of work or place of custom. Today, we are on the cusp of so-called vaccine passports being made a condition of our citizenship, with access not only to public transport but to public life, services, travel and work conditional upon compliance with an experimental vaccination programme monitored through so-called ‘vaccine passports’. There is, in other words, a direct line of creeping surveillance, authoritarianism and, as Lord Sumption warned us, totalitarianism between the mandatory wearing of face coverings enforced in June 2020 and the new conditions of citizenship that will be imposed by the mandating of vaccine passports in the months ahead.

In response to this threat, there has been widespread expression of opposition and debate, both inside and outside Parliament, whose primary concern has been with the threat such digital health passports present, both now and even more in the future, to our human rights. And that threat has been largely around the danger they have of discriminating against those who, under the Nuremberg Code formulated by the Allies after the defeat of the Third Reich, choose not to be vaccinated with the increasing brands of COVID-19 vaccines being forced upon the UK public. Under the monitoring of the proposed vaccine passports, this is a choice that will effectively reduce those who choose to refuse this medical treatment to the status of second-class citizens. Whatever the members of the ARB Investigations Panel feel personally about this choice, it is currently one protected under both UK and EU law.

There is, therefore, nothing ‘inappropriate’ in my Twitter post of 20 June reminding people of their rights under the Regulations I cited very precisely. On the contrary, I contend that it is ‘inappropriate’ to try and censor both this legal information and my use of the Yellow Star, as an instrument of discrimination, to point out the dangers of discrimination inherent in imposing face coverings on the UK public — dangers which have been made all-too manifest over the subsequent 10 months.

Of course, there are other people who know far more about the use of the Yellow Star as an instrument of discrimination than members of the Investigations Panel of the ARB or me. In March of this year, Vera Sharav, the founder of the Alliance for Human Research Protection, testified to the German Corona Committee (Corona Ausschuss), an organisation founded by four lawyers that is collecting evidence about the coronavirus crisis. Ms. Sharav, who was born Vera Roll into a Jewish family in Romania, is a survivor of the Shoah, having been rescued from a concentration camp in Mogilev at the age of 7. In her testimony, Ms. Sharav explicitly compared the mandating of face masks to the Yellow Star imposed on Jews under the Third Reich.

‘People are being conditioned to submit passively to Government dictates. Children, who are deprived of an education, are being conditioned to distrust people. Mandatory masks are an insidious psychological weapon. They demean our dignity as free human beings. They do not work in this or any epidemic. And they are the symbolic equivalent of the Yellow Star.’

Again, I recommend Ms. Sharav’s interview to the members of the Investigations Panel. But I will not ask — because to do so would be far more than ‘inappropriate’ — whether the ARB would accuse Ms. Sharav’s remarks of being ‘inappropriate’, or of bringing the Jewish people into ‘disrepute’ by publishing them.

In summary, the interpretations of my Twitter posts by the ARB are not merely subjective in their formulation, inaccurate in their description of the textual and visual component of those posts, and uninformed in their understanding of the histories they reference; they are wrong. They are wrong in drawing from these posts the accusations1 against me they have made, which are not supported by those posts. But, more seriously, given the position the ARB’s investigations officers occupy, they are wrong because they are using these subjective, inaccurate and uninformed interpretations to repress debate about the most consequential and wide-reaching political and social changes of our times. They are, therefore, not only seeking to interfere with my Freedom of Expression protected under Article 10 of the European Convention on Human Rights; but, far more seriously in my view, they are collaborating with a culture and a politics of censorship, of fear, of bullying, of slander, of lying with impunity and without accountability, that has taken hold of the UK.

5. Allegations of Bringing the Profession into Disrepute and the Reputation of Architects for Social Housing

I will now go on to respond to the consequential accusation the ARB investigations officer has made against Architects for Social Housing, and in particular against our lead architect, Geraldine Dening, based on the flawed allegations against me. This is that these two Twitter posts of 20 June and 20 December, 2020, have:

‘Brought the profession into disrepute, contrary to Standard 9.2 of the Architects Code: Standards of Professional Conduct and Practice.’

So that it’s clear what I am being accused of, here is Standard 9.2 of the current Architects Code, published in 2017:

‘You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute. If you find yourself in a position where you know that you have fallen short of these standards, or that your conduct could reflect badly on the profession, you are expected to report the matter to ARB. You should notify the Registrar within 28 days if, for example, you:  

• • are convicted of a criminal offence;
  • are made the subject of a court order disqualifying you from acting as a company director;
  • are made the subject of a Bankruptcy Order, Debt Relief Order or Bankruptcy Restriction Order;
  • have given a director disqualification undertaking or Bankruptcy Restriction undertaking;
  • are a director of a company which is wound up or placed in administration or a CVA (other than for amalgamation or reconstruction purposes);
  • make an accommodation with creditors (including a voluntary arrangement);
  • fail to pay a judgment debt.’

Now, it is clear that, not even in the wildest interpretations of my Twitter posts by the ARB’s officers, Ms. Dening, Architects for Social Housing or I am being accused of anything listed here. The sole accusation made against me, therefore, which is glaringly missing from this detailed list, is that my Twitter posts of 20 June and 20 December, 2020, have ‘brought the profession into disrepute’.

Inexplicably, in his letter to Ms. Dening, Mr. Harding has not said how these Twitter posts have brought the architectural profession into disrepute. If it were so obvious not to require stating, one would expect to see the reason listed in Standard 9.2, all of which, however, relate to the practices of an architect. It isn’t.

Even more inexplicably, Mr. Harding has not provided any evidence, whatsoever, of the ‘disrepute’ into which these two Twitter posts have allegedly brought the architectural profession.

In contrast to this lack of evidence, Architects for Social Housing has extensive evidence of the regard that we have earned from our work — not from everyone and all architects, undoubtedly. If we were held in universal regard, we wouldn’t be doing our job as architects for social housing confronting the neoliberal orthodoxy in which architects practice their profession in the UK. But this regard is held in sufficient numbers and in depth of feeling against which any evidence in support of the accusation of ‘bringing the profession into disrepute’ must be weighed.

In April 2018, ASH published Central Hill: A Case Study in Estate Regeneration, a book-length report of our work on a council estate threatened with demolition and redevelopment by Lambeth council. Central Hill is one of seven housing estates for which ASH has developed design alternatives to their demolition, and one of dozens of resident communities we have advised in their resistance to their eviction from their homes. For the publication of the report, therefore, we asked a range of people to endorse our work. These included the following professionals, both architects and academics:

• Professor Murray Fraser, Professor of Architecture and Global Culture and Vice-Dean of Research, Bartlett School of Architecture, Faculty of the Built Environment, University College London;
• Professor Anne Power, Head of London School of Economics, Housing and Communities, Honorary Fellow of RIBA, Chair of National Communities Resource Centre at Trafford Hall;
• Michael Edwards, Honorary Professor, Bartlett School of Planning, University College London;
• Professor Jane Rendell, Director of Architectural Research, Bartlett School of Architecture, University College London;
• Professor Mark Crinson, Professor of Architectural History, Department of History of Art Birkbeck, University College London;
• Juliet Davis, Architect and Reader in Architecture and Urbanism Welsh School of Architecture, Cardiff University;
• Paul Watt, Professor of Urban Studies, Department of Geography, Birkbeck, University College London;
• Harriet Harriss, Senior Tutor in Interior Design and Architecture, Royal College of Art;
• Pablo Sendra, Lecturer in Planning and Urban Design, Bartlett School of Planning, University College London;
• Kate Macintosh, Architect of Dawson’s Heights estate and Macintosh Court;
• Sam Causer, Architect and Director, Studio Sam Causer;
• Michael Jardine, Architect, HUB Architects Ltd.;
• Nicolas Fonty, Architect and Urban Designer, JustMap;
• Ted Landrum, Architect and author of Midway Radicals & Archi-Poems, Department of Architecture, University of Manitoba;
• Frédéric Druot, Architect and Director, Frédéric Druot Architecture.

For the consideration of the Investigations Panel, in Appendix A I have attached the contents of their comments, which I won’t try to summarise here, but which depicts a practice that, far from bringing the architectural profession into ‘disrepute’, has since its founding in 2015 sought, by various means, to return the profession to a sense of its ethical duties, expressed not in signed manifestos but in practice. This has, inevitably, drawn considerable criticism, particularly from those practices which are complicit in the area of architectural practice that has, arguably, brought the most disrepute to the profession. This is the so-called estate ‘regeneration’ programme that ASH was founded largely to offer an alternative to. Indeed, in our forthcoming book, For a Socialist Architecture, developed from our lectures in Vancouver over the summer of 2019, we identified the following practices as complicit in this programme:

• Adam Khan (Tower Court and Marian Court)
• Alison Brooks (South Kilburn and South Acton estates)
• Allies and Morrison (Heygate, Gascoigne, Acton Gardens and West Hendon estates)
• David Chipperfield (Colville estate)
• dRMM (Heygate estate)
• Hawkins\Brown (Agar Grove, Bridge House, Aylesbury and Alton estates)
• Haworth Tompkins (Robin Hood Gardens estate)
• HTA Design (Ferrier, South Acton, Waltham Forest, Kender, Aylesbury, Ebury Bridge, Ravensbury, New Avenue and Clapham Park estates)
• Karakusevic Carson (Claredale, King’s Crescent, Bacton, Colville, Alma, Nightingale, Fenwick, St. Raphael’s, Joyce Avenue and Snell’s Park estates)
• Levitt Bernstein (Aylesbury, Eastfields, Winstanley, York Road and Rayners Lane estates)
• Maccreanor Lavington (Heygate and Alma estates)
• Mae (Knight’s Walk, Agar Grove and Aylesbury estates)
• Metropolitan Workshop (Leopold and Robin Hood Gardens estates)
• Mikhail Riches (Goldsmith Street)
• Pollard Thomas Edwards (Lefevre Walk, Packington, Alma, Thames View East and South Lambeth estates)
• PRP (Crossways, Myatts Field North, Mardyke, Haggerston, Kingsland, Portobello Square and Central Hill estates)
• Studio Egret West (Ferrier and Love Lane estates)

ASH has published numerous case studies on the devastating consequences of these ‘regeneration’ schemes, which may be read on our website. We are not social-media trolls and tattle-tales, and never, of course, thought to ‘report’ the architects responsible to the ARB; but it strikes me as strange that an organisation responsible for protecting the reputation of the architectural profession has never once seen fit to issue censure or sanction to the practices and individuals engaged in this programme, which has become synonymous with the ugly term ‘social cleansing’. I might say the same of its failure to issue a statement in response to the Principle Architect at Zaha Hadid Architects, Patrik Schumacher, whose remarks at the World Architecture Festival held in Berlin in November 2016 drew genuine outrage both inside and outside the profession. But these are powerful individuals, at the head of established practices, involved in hugely financially lucrative projects, and with access to lawyers a practice such as ASH cannot afford.

At ASH, we agree that the architectural profession does, indeed, have a serious problem with its reputation, both inside and outside the profession. It has become synonymous with the predation of property development and the crisis of housing affordability in the UK; and from our extensive work with estate communities under threat from those practices, we can confirm that residents have the lowest opinion possible of the probity and trustworthiness of architects. But that most certainly does not come from the Twitter posts I published on the 20 of June and December last year.

But what of my more recent writings, which are the foundation for these Twitter posts? Since March 2020, my writings have been largely, although not exclusively, about the coronavirus crisis. This has not stopped me publishing reports on ASH’s design options for The Drive Housing Co-operative and our co-housing design option for the Brixton Housing Co-operative, for both of which Geraldine Dening was the lead architect, in conjunction with other architects, designers, quantity surveyors, engineers, and planning consultants. My limited role in these design projects has been to write this work up into a report that was then published on the ASH website.

But the transformation of the UK under the cloak of the coronavirus crisis into what Lord Sumption warns is in danger of becoming a totalitarian society, and our fundamentally altered legal status within it, has been so sudden and widespread that I have largely devoted myself to researching and analysing its regulations, programmes and technologies. My published views about the UK biosecurity state emerging from the coronavirus crisis come from the same depth and detail of research that I applied to the financial and legislative causes of the housing crisis. And my concerns about the effects of biosecurity regulations and programmes on the poorest members of UK society arise from the same knowledge — acquired over 6 years’ work with ASH — of the impact of global capital and neoliberal housing legislation on the UK residents most vulnerable to housing precarity and homelessness. And, just as they did on the UK housing crisis, my articles have drawn forth hysterical, fearful, uninformed, aggressive, threatening and vindictive comments.

It will not have escaped the Investigations Panel that the increasing authoritarianism and unaccountability of the Government, the corruption of its practices and the repeatedly exposed lies of the media, have divided the country as it has never before been divided in modern times. It would be surprising indeed if my articles, which expose all the above, did not draw forth such responses. But I am happy to say that they have also drawn, and in far greater number, hundreds of positive responses. The 19 articles on the coronavirus crisis I have published between March 2020 and February 2021 have been visited over 250,000 times on our website, and been republished on numerous websites in the UK, the USA and Germany. And in the first two collections of my articles on the implementation and expansion of the UK biosecurity state, I have collected over 49 pages of readers’ comments that are unstintingly positive.

Again, I will not try to summarise these here, and in Appendix B I attach them for the consideration of the Investigations Panel, to set against whatever evidence the ARB has collected of my two Twitter posts bringing the profession into ‘disrepute’. But I would like to quote the following comments, which were made by Robin Monotti Graziadei, an architect and film-producer based in London, the managing partner of Robin Monotti Architects, and a Fellow of the Royal Society for the Encouragement of Arts, Manufactures and Commerce. Mistaking (perhaps like the ARB) the author of my articles and the Twitter posts through which I publicise them to be an architect, he wrote on his own Twitter account:

‘Simon Elmer from Architects for Social Housing is always asking the right questions. It’s an honour to the profession to have architects like him.’

‘Architects for Social Housing should be awarded the RIBA Gold Medal 2021. No architect has done as much for society in the last year at least.’

It’s a little embarrassing for me to have to cite these comments in my defence against the accusations of the ARB, but I’d be surprised if any other researcher from an architectural practice in London could produce equivalent endorsements from their readers. And if my published research on the Government’s implementation of a biosecurity state are, as the ARB asserts, ‘inappropriate’, then why have a quarter of a million people read and shared them? More to the point, neither Ms. Schejtman nor Mr. Harding have produced as evidence in support of their accusations anything approaching the 49 pages of overwhelmingly positive feedback to my articles and Twitter posts on the coronavirus crisis.

6. The Identity of the Complainant and his Malice towards
Architects for Social Housing

That doesn’t mean, however, that we are not aware of the likely source of the complaint made against us, and of the identity of its author. From my recollection, the Twitter post made on 20 June was only on the @9thfloor account for a single day. In the screen grab sent to Geraldine Dening by Ms. Schejtman as ‘evidence’, it can be seen that the post was only ‘retweeted’ 4 times. As a means of conveying the information on our legal rights under the new Regulations, therefore, it was not successful, and I deleted and replaced it, I believe, with a more detailed statement of how one can go about claiming exemption under the new Regulations, and this was widely shared.

The post, however, had been copied (not shared), presumably by a screen-grab, and posted on another Twitter account, that of Jon Astbury (@jonastbury). Jon Astbury is a former student of Geraldine Dening’s in the School of Architecture at De Montfort University, where he is currently employed as an hourly-paid tutor. I can’t remember now exactly what Mr. Astbury wrote when he posted this image, and he has blocked me from viewing his account; but he used it to set up a trolling platform against ASH. In subsequent posts on this thread, published in early September, 2020, he accused ASH of being ‘anti-mask’, ‘anti-science’, ‘anti-online teaching’, of ‘ranting’, and of comparing lockdown to the Third Reich. Apart from the fact that he is a teaching colleague of Geraldine Dening, who is a Senior Lecturer at De Montfort University of 12 years’ standing, Mr. Astbury actually shares DMU students with her, and they have access to his online slurs against ASH and, by implication, her.

Dening wrote to Mr. Astbury by e-mail, and asked him to remove his posts. He refused to do so. Indeed, if the ARB is concerned about this post bringing the profession into ‘disrepute’, they should contact the person who, as far as we know, continues to repost his commentary on it on Twitter, including posting it on other threads. It should be clear to the investigating officers at the ARB that Mr. Astbury’s aim in doing so was not to defend the reputation of the architectural profession but to set up a trolling platform, which was duly used by anyone with a grudge against us, who has some psychological issue they wished to aggrandise into a moral defence of this or that issue, to signal their moral virtue to their followers, or who simply wanted to gain some reflected glory by trolling ASH.

These trolls included Joseph White, another former student at De Montfort University and a Part 1 Architectural Assistant at rg+p Ltd, who also began to attack us on his own Twitter account in mid-September. On the same platform set up by Mr. Astbury, we were also trolled by another member of staff at DMU, Vinesh Pomal; and by a junior lecturer at The Courtauld Institute whose name I can no longer recall. We therefore brought this trolling of a colleague to the attention of the Department of Architecture at DMU, in a letter from which I extract this passage:

‘You may think this is childish but basically harmless name-calling, but you’d be wrong. This is called “trolling”, and it has a very real and negative effect on the persons and organisation being trolled.

‘I believe Geraldine spoke to you a few years ago when ASH was the object of a sustained trolling campaign by an academic and a photographer. At the time she asked DMU’s lawyers to help stop this, and was refused. You should know that this campaign has not gone away, and recently Geraldine has asked for DMU’s help again. In our view, DMU should be doing everything it can to clear stop the public smearing of the persons and work that it is presenting as part of its Research Excellence Framework. 

‘Because of this lack of action by DMU, and in the absence of the legislation protecting us from such trolling, a Google search of our company and names will throw up webpages containing their smear campaign. As a result of this, ASH has been banned from speaking at events. Every organisation we work with we have to inform to block the Twitter accounts attacking us. And we are constantly having to explain to supporters why this slander is in circulation. 

‘It is to this that the apparently harmless comments of Jon Astbury is contributing, and which, as with other trolls, becomes a platform for attacking us. These are not “throw-away” comments. They are part of the digital archive about us, and they will be found and repeated by anyone with an axe to grind against us.’

I copy here an excerpt from a briefing on ‘Cyber trolling and bullying’ by Cohen Davis Solicitors, which specialises in legal help for victims of trolling. If they are not already aware of this bi-product of social media, I recommend that the members of the Investigations Panel read this briefing to understand how seriously we take these Twitter posts by Jon Astbury and his fellow ‘trolls’. As this legal firm makes clear, ‘trolling’ is harassment under UK law.

‘Depending on the victim’s situation and circumstances, and whether they are in the public eye or not, the impact of online trolling may vary but mental health is always greatly affected, no matter your walk of life. Confrontational, threatening, persistent, negative, nasty and inflammatory comment posts directed at you and shared about you across the world wide web shatters confidence, creates great anxiety and paranoia, leads to eating disorders and body dysmorphia, depression and tragically, often, suicidal thoughts and actions. 

‘After trolls are all done with posting their random, thoughtless, ugly comments online, they carry on with their lives without thinking that they face any real life consequences (until we track them down), but there are no excuses for online trolling. This is a serious offence of harassment — a criminal offence as well as a civil wrongdoing. An online troll that posts slanderous, slurring, mean words have real effects on real people and often, with devastating effects. The comments and the linking and the sharing of derogatory and negative posts makes life feel unbearable, for anyone.’

Both Ms. Dening and I have been the butt of trolls and smear campaigns throughout the existence of ASH. We have reported the trolling posts to Twitter. We have reported the lies and slanders written about us in blogs to Google. We have sought free legal advice (since paid legal advice is beyond our means) from human rights lawyers. We have even approached the police, since one of the trolls, Rab Harling, has a history of violence and mental illness. But we have not been able to stop these incessant and ongoing slurs against our reputations. And, unfortunately, DMU took the same lack of interest in our complaints, as did the architectural practice, rg+p Ltd, when I informed them of the trolling of us by their employee, Joseph White. This ongoing trolling by a fellow member of staff has had a negative impact on Ms. Dening’s teaching at DMU, including having to refuse to teach students taught by her troll, Mr. Astbury. As far as I know, the trolling platform Jon Astbury set up on his Twitter page is still there, and people are still attacking us on it. Several lawyers have told us that, in the absence of the legislation to protect us against these slur campaigns, we have to accept this as one of the consequences of becoming semi-public figures through our public work with ASH. That may be. But what neither Ms. Dening nor I ever thought would happen is that the ARB would become a mouthpiece for that trolling.

It seems to us more than likely that the source of the complaints made to the ARB about the posts the Investigations Panel is considering investigating is Jon Astbury and his fellow trolls. The lack of action by DMU on this trolling has caused Ms. Dening considerable distress. Indeed, I would say that having to share students with a colleague who is trolling her constitutes the grounds for a charge of harassment. Under Section 26, Paragraph 1, Section B of the Equality Act 2010, this is defined as: ‘conduct [which] has the purpose or effect’ of either (i) ‘violating dignity or’ (ii) ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’. The trolling of ASH by Mr. Astbury and other young, male, former students of hers and current colleagues at DMU has undeniably created such an environment; and it is deeply unfortunate and regrettable that the investigations officers at the ARB have — I trust unknowingly — accepted the complaints against my Twitter posts on the judgement of such persons. Indeed, I would suggest that the investigating officers at the ARB would be better employed investigating the trolling of ASH by these and other architects, rather than adding to the distress that Ms. Dening, a female Senior Lecturer and architect, has already experienced at the hands of these young men and former students, by threatening her with sanctions up to an including removing her ability to practice as an architect.

For all the above reasons, I urge the Investigations Panel to instruct the investigating officers to withdraw their accusations against me. As I hope I have shown, the complaints against my two Twitter posts are made by individuals who are not only trying to censor my views, protected under Article 10 of the ECHR, but also to pursue a personal and vindictive vendetta (whose psychological origin I won’t speculate upon) against their former teacher and present colleague. Indeed, the escalation of this trolling campaign against ASH by Ms. Dening’s former students has made her begin to fear for her safety. Should this continue, we will consider contacting the police again about this vindictive harassment of her by these predatory young men, who are apparently set not only on slurring her reputation and damaging her mental health, but also on bringing about her professional ruin as an architect. I trust and hope that the ARB will have nothing to do with this disgraceful behaviour towards Ms. Dening.

7. The Character and Career of Geraldine Dening

Before I end this response to the accusation that, through these two Twitter posts, Architects for Social Housing has brought the profession into ‘disrepute’, I want to say something about the character and career of Geraldine Dening, the architect the ARB is threatening with sanctions that run from a reprimand, through a fine up to £2,500, to suspension for up to 2 years, to being erased from the register of architects, a sanction that will severely damage her ability to earn a living and with it the continued existence of Architects for Social Housing, CIC.

In 1997, Geraldine Dening was awarded the RIBA part 1 MA in Architecture from Newham College, the University of Cambridge. Between 1999 and 2002 she went on to take her part 2 Diploma in Architecture from the Bartlett School of Architecture, University College London. Finally, between 2007 and 2009, she took her part 3 Graduate Diploma in Professional Practice from the University of Westminster, for which she was awarded a Distinction.

Since 2009, Ms. Dening has taught at the School of Architecture at De Montfort University in Leicester. In 2010 she was appointed Senior Lecturer; in 2017 she was made Module Leader in Professional Practice and Ethics; and in 2018 she was the Joint Head of 3rd Year. In addition, since 2005 she has been a visiting critic for the Bartlett School of Architecture, the Architectural Association, University College London, the University of East London, the London Metropolitan University, Kingston University, the University of Nottingham and the University of Sheffield.

In 2006, she founded Geraldine Dening Architect, her professional practice. Notable projects include the office for Tank Magazine (2007-08), Fold House, a domestic extension in Mile End that was published in the Architects Journal (2008-13); and the Peabody Housing Small Projects competition, for which her submission was shortlisted (2014).

In 2015, Ms. Dening co-founded Architects for Social Housing, a community interest company. Since then, ASH has produced feasibility studies for design alternatives (including the refurbishment of existing homes, improvement of community facilities, roof extensions and infill new housing) to the demolition of 7 housing estates in London. These include Knight’s Walk, a part of Cotton Garden’s estate in Kennington (2015); Central Hill estate in Crystal Palace; West Kenington and Gibbs Green estates in West Kensington (2015-16); Northwold estate in Hackney (2017); Patmore estate in Battersea (2017-19); and St. Raphael’s estate in Wembley (2019-21). For only two of these estates — the co-extensive West Kensington and Gibbs Green estates — did ASH receive payment, and that at a hugely reduced rate. On all the other projects, therefore, the work was done pro bono publico, ‘for the public good’. On all these projects, each one of which took between 1 and 3 years of work, Geraldine Dening was the lead architect. But she has been assisted by numerous young architects and architectural assistants, environmental engineers, quantity surveyors, engineers and planners, all of whom also gave their labour for free, because they believed in what ASH was doing, and were opposed to the plans of the councils, housing associations and architectural practices collaborating with London’s estate demolition programme.

Although, with the exception of the Patmore estate, the other six estates had all been condemned to demolition when their residents approached ASH, all of them are still standing, with the exception of Knight’s Walk, on which 17 of its 33 homes have been demolished. In total, ASH’s design work, under the lead of Geraldine Dening, has been instrumental in saving over 1,400 council-built homes targeted for demolition, or the homes of over 3,600 people, during the worst crisis of housing affordability in the UK in a generation. Her designs for St. Raphael’s estate, if successful, will be responsible for saving an additional 760 council-built homes currently targeted for demolition, and which are currently the homes of at least another 3,000 people.

In addition to this design work, over the past 6 years ASH has advised dozens of housing estate communities on their campaigns to save their homes from demolition, including the residents of Cressingham Gardens, Montreal Square, Ham Close, the Carpenter’s, Montague Road, Achilles Street, Macintosh Court, Silchester, Warwick, Somers Town, Granville Road, Ravensbury, Alton, Holland, Edmundsbury and Ebury Road estates. This sometimes took the form of advising residents on the consequences for them of new legislation, such as the Housing and Planning Act 2016, or of new housing policy, such as the London Mayor’s Good Practice Guide to Estate Regeneration, and sometimes technical advice in support of their campaign. In the case of residents of Treves and Lister House in Whitchapel, we put residents in touch with a quantity surveyor we work with, whose evaluation of the actual cost of refurbishing their homes, which was less than a quarter the cost claimed by the would-be developers, saved their homes from demolition by Tower Hamlets council. All this advice was given pro bono.

Despite this huge amount of work and its beneficial impacts, ASH has never received any public funding. While the architectural practices collaborating on these projects — which have, without question, brought the profession into disrepute — have sought to profit from the housing crisis for which, in London, the estate demolition scheme has been the primary mechanism for clearing inner-city land for global investment in residential property, Geraldine Dening, as ASH’s lead architect, has from her own private practice cross-subsidised her work and the work of others to offer design alternatives that are not only far more socially beneficial, but financially viable and environmentally sustainable. In 2016, Ms. Dening commissioned the environmental engineers, Model Environments, to produce an ‘Embodied Carbon Estimation for Central Hill Estate’, showing the huge environmental costs of demolishing whole estates. Indeed, much of ASH’s work and ideas about the environmental costs of estate demolition and redevelopment — if not yet the devastating social and economic costs to residents — has entered architectural debate in the UK, although with little sign, yet, of it influencing architectural practice and ethics.

In addition to this pro-bono work with estate residents resisting the demolition of their homes and the destruction of their communities, Ms. Dening has also worked with various housing co-operatives looking to extend their existing housing stock. This includes feasibility studies for The Drive housing co-operative (2017-19), the Brixton Gardens co-operative housing development (2018), and the Brixton Housing Co-operative (2019).

In response to this work, Ms. Dening has been invited to present her designs all over the UK, across Europe and in North America. Indeed, because of the threat her designs pose to the developers, architects, consultants, housing associations and councils profiting from the capital’s crisis of housing affordability, it is only in London that ASH is subjected to the kind of petty trolling and slander campaigns that have necessitated this response to the ARB.

Over the past seven years, Ms. Dening and myself have presented the work of ASH to the Architectural Association, the Cass Business School, the Bartlett School of Architecture, the University of East London, Tate Modern, the University of Westminster, the Royal Institute of British Architects, the Royal Academy of Arts, the London Metropolitan University, the Institute of Contemporary Arts, the Serpentine Gallery, the University of Sheffield, the Barbican Centre, the Haringey Council Housing Scrutiny Committee, Goldsmiths College, the Building Design Partnership Offices, the Chelsea College of Art, Birkbeck College, the Festival of Maintenance at University College London, the Tulse Hill Labour Party, the Wellcome Trust, the London Design Museum, the Serpentine Sackler Gallery, Cambridge University, the Centre for Alternative Technologies in Wales, the Architectural League of New York, the Braunschweig University in Germany, the Kunstraum Kreuzberg/Bethanien in Berlin, the Universidad de Sevilla in Spain, Architecture sans Frontières, and the Waterloo Architecture School of Ontario, as well as to scores of resident, union and campaign groups.

The work of ASH has been discussed in the Architects’ Journal, The Observer, The Guardian, the Evening Standard, The Morning Star, Building Design, ArchDaily, the RIBA Journal, Open Democracy, City, Huffington Post, Inside Housing, Architecture and Culture, Designers in Residence, the Architecture Foundation, Vice, Future Cities Project, Critical Social Policy, Arch+, Cahdco, and The Institute of Race Relations. Ms. Dening’s design work has been discussed in 8 published academic books that we know of, including Anna Minton’s Big Capital: Who is London For?(2017), David Madden and Peter Marcuse’s In Defense of Housing, The Politics of Crisis (2018), Brett Christophers’ The New Enclosure: The Appropriation of Public Land in Neo-liberal Britain (2018), Anitra Nelson and François Schneider’s Housing for Degrowth: Principles, Models, Challenges and Opportunities (2019) and Paul Watt’s Estate Regeneration and its Discontents: Public Housing, Place and Inequality in London (2021). The work of ASH has appeared in several films, including Dispossession: The Great Social Housing Swindle (Velvet Joy Productions, 2017), Concrete Soldiers (Woolfe Vision, 2017), Empty Housing in London (Design Buildings Wiki, 2018), Cronaca di un disastro: 1. La torre Grenfell (Millstream Films and Media, 2020), and she has been interviewed on RT UK News about the Grenfell Tower fire. ASH’s work has been exhibited at Peer Gallery, Cubitt Gallery, the London Estates Forum at City Hall, the Institute of Contemporary Art, the Serpentine Sackler Gallery, and the 221A Gallery, Vancouver. Our report, The Truth about Grenfell Tower: A Report by Architects for Social Housing, was submitted by the Grenfell Action Group to the consultation on the terms of reference for the Grenfell Inquiry; and Jamie Burton, of Doughty Street Chambers, has informed us that ‘our reports have been used by way of research by the lawyers representing the families’. Finally, in 2018, Geraldine Dening was voted one of the 30 most influential architects in London by the Evening Standard; and this year she was accepted onto the experts advisory board of the Design Council.

And yet, incredibly, this is the architect that the Investigations Panel is seriously considering sanctioning for two Twitter posts she did not write, that have been reported to the ARB by Twitter trolls who have repeatedly sought to victimise her out of what appears to be professional jealousy, and whose deliberately inaccurate interpretation the ARB has repeated without apparent consideration of their content or context.

However, I find this not only incredible, but also sinister. It is clear that what criticisms the ARB has received about these two posts have deliberately misinterpreted their actual and clear meaning — which is a warning about the accelerated erasure of our human rights and civil liberties under the cloak of the coronavirus crisis — in an attempt to slander and silence ASH. Whether that’s because the complainant(s) are opposed to the architectural work ASH has produced over the past six years of practice and which places an ethical responsibility on the profession not all architects are able to meet, or whether it’s out of professional jealousy, or whether it’s out of sheer vindictiveness against figures in the public eye, or whether it’s because of their opposition to our research and analysis on the emerging UK biosecurity state, or whether it’s because of some mental health issues — I don’t know or care to speculate. We are, unfortunately, used to this kind of behaviour on social media. What is sinister, though, is that the ARB has lent its authority and reputation to this behaviour.

Far from Geraldine Dening or ASH bringing the architectural profession into ‘disrepute’, her work with ASH is exemplary, and a model of what an architect can do even under the wholesale neoliberalism of architecture in the UK to which only a handful of architects have offered resistance. That someone who has cross-subsidised this enormous amount of pro bono work from her own private practice is now threatened with sanction, fines and possible removal from the register of architects is a disgrace that brings not only the ARB but the profession it represents into disrepute.

We live in a time when censorship of speech and opinions that before March 2020 would have been dismissed as the province of China or North Korea has become the accepted norm. Over the past year, we have seen prominent public figures, in the media, in medicine, in law, who have dared to speak out against the unprecedented level of propaganda and lies to which we have been subjected, made examples of through campaigns of trolling, shaming and slander. Perhaps it is no more than revenge for ASH repeatedly bringing attention to the ethical shortcomings of a profession that has become synonymous in the public’s mind with corruption in local and municipal authorities, the washing of dirty money through property investment, and the transformation of housing into a commodity for global capital; but given the atmosphere of fear, bullying and censorship created by the Government and media, the ARB’s groundless accusations against Ms. Dening look like a crude attempt to silence my exposure of the threats to our human rights and civil liberties presented by the regulations, programmes and technologies of the emerging UK biosecurity state.

Let me end by reaffirming what I have already stated, that:

• ASH’s previous Twitter account, @ASH_Housing, which we set up in 2015, was subsequently decommissioned by us in early 2018 following a trolling campaign by photographer Rab Harling and academic Stephen Pritchard, which they initiated in May 2017 and continue to this day.
• We only returned to Twitter in early 2020 when it was made possible to ‘hide’ the comments of trolls on our own posts, and therefore to curb somewhat the effects of their trolling.
• Since then, the @9thfloor Twitter account is used exclusively by myself.
• Because of the distress the trolling of ASH continues to have on her, Ms. Dening has not used the @9thfloor account since ASH began to reuse Twitter, and certainly since this crisis unfolded, since when I have used it almost exclusively to publicise my writings on the emerging regulations, programmes and technologies of the UK biosecurity state.
• Ms. Dening does not oversee, review or have any veto over what I post on this Twitter account.
• Ms. Dening was not aware of the post of 20 June being considered for investigation by the Investigations Panel until it was used by Mr. Astbury in September 2020 to create a trolling platform against ASH. She was not aware of the post of 20 December until she received the letter from Ms. Schejtman in January of this year, in which she included it as ‘evidence’.

Finally, this threat to destroy the career of Ms. Dening has already caused her considerable anxiety and hugely increased the pressure on her during a time when she is already struggling to keep her professional practice afloat financially under the ongoing lockdown restrictions that have destroyed tens of thousands of small businesses in the UK. Neither Architects for Social Housing nor Geraldine Dening Architect are in receipt of any Government financial support to offset the effects of these restrictions. I myself have had to devote a week’s work to answering these accusations against our company’s lead architect. This hasn’t stopped Ms. Dening from completing ASH’s design proposals for St. Raphael’s estate, on which she has worked, pro bono, with a team of 10 architects and architectural assistants for the past two years, and which we will be publishing next month for the use of residents opposed to the demolition of their homes and the destruction of their community.

I therefore urge the Investigations Panel of the ARB to drop these accusations, issue an apology to Ms. Dening for the distress they have already caused her, and allow her to return to her important and exemplary work as an architect for social housing.

Simon Elmer
Head of Research
Architects for Social Housing

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Submissions on behalf of Architects for Social Housing
by Francis Hoar, Barrister

Table of Contents

1. Introduction
2. Factual Background and Context
3. Misconduct: Jurisdiction and ECHR Rights
4. Ms. Dening did not make or authorise the statements
5. Abuse of Process
6. The comments cannot be considered to have ‘brought disgrace’ on the person making them, having regard to ECHR rights
7. Discrimination on the basis of the protected characteristic of philosophical belief
8. Conclusion

1. Introduction

These submissions are made on behalf of Architects for Social Housing (‘ASH’) a Community Interest Company (‘CIC’) incorporated in August, 2016. They are made in response to a formal investigation by the Architects’ Registration Board (‘the ARB’) into comments and an article posted on ‘Twitter’ by an account, ‘@9thfloor’, in the name of ASH and operated by Dr. Simon Elmer, PhD, a founding director. The tweets and article in question were written by Dr. Elmer.

The other founding director of ASH, Geraldine Dening, MA (Cantab) DipArch ARB, is an architect and academic who has practised with distinction in a long and unblemished career lasting for 24 years since her Cambridge MA, for 16 years since becoming a visiting critic at the Bartlett School of Architecture, the Architectural Association, University College London, the University of East London, the London Metropolitan University, Kingston University, the University of Nottingham and the University of Sheffield, and for 12 years as a Senior Lecturer at De Montfort University (‘De Montfort’). Ms. Dening runs a module in Professional Practice and Ethics at De Montfort and takes the profession and practice of architecture very seriously. Ms. Dening was not in any way responsible for writing the posts or articles being investigated and did not read them before they were published.

Dr. Elmer is an art and architectural historian and an academic but is not a qualified or practising architect. He obtained his PhD from University College London (‘UCL’) and has held academic positions including that of Visiting Professor in the Department of the History of Art and Architecture at the University of Michigan, USA for a number of years in the 2000s.

These submissions accompany a witness statement from Dr. Elmer, which sets out the context, background and reasoning behind the posts that are the subject of this investigation. His witness statement is relied on in full, including those parts not directly cited in these submissions.

At the outset, it should be observed that ASH is a mixed practice. While it offers architectural services, they do not constitute the entirety of its activities. It is principally a campaigning and community interest organisation whose express purpose is to advocate a particular viewpoint that is not merely architectural but also political: the importance of retaining council estates and the communities within them. It has an avowedly ‘political’ approach to architecture and public life; and it is part of its ‘mission’ to advocate these views — both on behalf of others and on its members’ behalf.  Commentary on public affairs is not incidental to its operations: it is integral.  But that commentary — and that part of ASH’s services — is not the provision of architectural services and is not regulated by the ARB.

It is understood for reasons outlined in the next part of these submissions — and the ARB is asked to confirm as it is material to the issues it must consider — that the investigation was in response to a complaint by one or both of two former students at De Montfort: Jon Astbury, a former student of Ms. Dening’s who is now a part-time lecturer at De Montfort, and Joseph White, now a Part 1 Architectural Assistant at rg+p Ltd. Mr. Astbury has been responsible for a campaign of harassment against Ms. Dening conducted over the last year, which Mr. White joined at a later stage.

The tweets and articles, while about controversial subjects, did no more than express opinions about areas of intense and important public debate. Those tweets that were sent individually were part of a ‘thread’, which would have been available to Twitter users, that included Dr. Elmer’s detailed and thoughtful academic discussion about the nature of what he saw as the authoritarian nature of the ‘lockdowns’ and other restrictions imposed in response to the Covid-19 epidemic, in the context of lessons that (he contended) should be learnt from the practises of previous authoritarian regimes. None of them concerned architecture or made comments about the profession or anyone in it. Nor is it suggested by the ARB that they were discriminatory towards any particular group or individual: indeed, in her email of 17^th March 2021, Viviana Schejtman said that the ARB did not raise ‘any particular allegation of discriminatory or anti-Semitic conduct’; and no further allegations of discriminatory conduct were made in its letter of 29^th April 2021. That readers may have disagreed — even intensely — or considered these statements uncomfortable cannot mean that making them brought the profession into disrepute.

Thus, the primary submission of Ms. Dening, as well as ASH and Dr. Elmer who, while not regulated, has a reputational stake in the decision of the ARB, is that the ARB should dismiss these complaints as wholly without merit.

Alternatively, it is the contention of Ms. Dening, ASH and Dr. Elmer that the ARB should conclude, on the basis of the evidence before it and having considered these submissions, that there is no case to answer on the following grounds:

1. It would be inappropriate for the ARB to discipline Ms. Dening for statements she did not make or authorise in advance, in view of the proper limitation of its jurisdiction over Ms. Dening and its lack of direct jurisdiction over ASH;
2. Further and alternatively, if and insofar as the ARB confirm that the investigation arises from allegations made by Mr. Astbury, the investigation should be dismissed as an abuse of process as the ARB appears to be allowing itself (unwittingly) to be used as part of a campaign of harassment against Ms. Dening by Mr. Astbury and/or Mr. White;
3. Further and alternatively, there is no prospect of any reasonable regulatory body considering that the relevant posts could bring the profession of architecture into disrepute, in consideration of the rights to freedom of conscience and of expression protected by Articles 9 and 10 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’); and the ARB, as a public body exercising a public function, must not act in a way which is incompatible with these rights (s 6 of the Human Rights Act 1998 (‘the HRA’)); and
4. Further and alternatively, Dr. Elmer, as the author of the tweets, has the protected characteristic of philosophical belief, being the belief that the use of lockdowns and related measures threaten an undemocratic and authoritarian political system; that Dr. Elmer’s right to express his philosophical belief is interfered with by disciplinary proceedings against the organisation, ASH, of which he is director and over which the ARB’s regulatory responsibility is only indirect (over Ms. Dening) and only over its provision of architectural services; and that, by disciplining ASH for publishing Dr. Elmer’s posts, it is interfering with the right of Dr. Elmer to express his philosophical belief and so discriminating against him directly (by treating him less favourably) than a person who does not hold those opinions, contrary to s 13 of the Equality Act 2010 (‘the 2010 Act).

If the allegations are not dismissed summarily as wholly without merit, the ARB should properly consider jurisdiction first and should consider whether to dismiss an allegation for abuse before it considers material considerations (hence the order in which the submissions are put). In such circumstances, however, it is asked also to make a positive ruling that the statements of Dr. Elmer (and engagement in a public debate in that way) was not and could not bring the profession into disrepute.

Where these submissions refer to ‘ASH’, they are intended also to refer to Ms. Dening and (albeit he is not regulated by the ARB) Dr. Elmer. 

2. Factual Background and Context 

The factual background and context is set out in detail in the witness statement of Dr. Elmer, which is relied upon in full. The investigation concerns the following:

• In a letter dated, 27^th January, 2021, Viviana Schejtman, an ARB Investigations Officer, wrote to Ms. Dening with the opinion that ‘several of the comments’ published on my @9thfloor Twitter account contain what she described as:

‘offensive and insensitive remarks about the Holocaust’

Before asserting that these comments:

‘compare the Holocaust to the current restrictions imposed by the Government to contain the Covid‐19 pandemic’.

• On 17^th March, 2021, Ms. Dening received an e-mail from Ms. Schejtman, informing us that the ARB had concerns that Dr. Elmer had:

‘made statements connecting the recent COVID health restrictions with the treatment of Jews in Nazi Germany’.

• Finally, on 29 April, 2021, Ms. Dening received a letter from Matthew Harding, another Investigations Officer, asserting that:

‘the Twitter post of 20 June inappropriately used religious imagery to encourage others to breach COVID-19 legal restrictions;

and

‘the Twitter post of 20 December inappropriately compared the actions of the government and its agencies in response to the COVID-19 pandemic, to those of the Nazi regime in 1940s Germany.’

Dr. Elmer’s explanation for the posts and articles and his reply to the suggestion that they bring the profession into disrepute is set out at paras 18 to 56 and is relied upon in full. The latter allegation is addressed in these submissions at paras 53 to 56 below.

ASH’s belief that this investigation arises from a complaint or complaints by Mr. Astbury and/or Mr. White is set out in paras 72 to 79 of the witness statement of Dr Elmer. In particular:

1. Mr Astbury has been engaged in a campaign of traducing the online content of ASH on a regular basis throughout the last year; and
2. The Twitter post made on 20^th June 2020 was up for only one day and received only four ‘retweets’, yet within that time Mr Astbury took a screenshot of the post, which he then tweeted (without retweeting the ASH tweet) on his own account (@jonastbury).

Of course, the ARB need not consider evidence as it will know whether the allegation was made by either of the above individuals. But the above is set out in order to explain that ASH has reasonable grounds to believe that it might have been and to explain why submissions have been made that the investigation would appear to be an abuse of process if it arises from allegations made by either of them.

If the complaint was not made by Mr. Astbury or by Mr. White, the ARB is asked to disregard submissions that the investigation is an abuse of process. However, the background evidence of Dr. Elmer about the harassment of Ms. Dening by her former students because of the expression of political opinion in an account associated with her. 

3. Misconduct: Jurisdiction and ECHR Rights 

The ARB’s jurisdiction over cases of unacceptable professional conduct (‘UPC’) was set out, by reference to caselaw concerning other professional regulatory bodies, in the case of ARB v Kellow (2020):

27 [The solicitor to the ARB] reminded the Committee that the meaning of misconduct was considered in the [High Court] case of Remedy UK v GMC [2010] EWHC 1245:

“First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession…..Conduct falls into the second limb if it is dishonourable or disgraceful or attracts some kind of opprobrium; that fact may be sufficient to bring the profession of medicine into disrepute. It matters not whether such conduct is directly related to the exercise of professional skills”.

28  In considering whether the Respondent’s conduct amounts to UPC, she also referred the Committee to the case of R (on the application of Pitt and Tyas) v General Pharmaceutical Council [2017] EWHC 809 (Admin). This case, she submitted established that behaviour remote from a professional practice if sufficiently disgraceful, can still amount to “serious professional misconduct”. In deciding whether it does, the Committee should consider the potential damage caused by the Respondent’s conduct to the public reputation of the profession.

29. The Committee recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin) such that it would attract a degree of opprobrium or harsh criticism. The Committee has borne in mind the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions” (The Queen on the Application of Dr Malcolm Noel Calhaem –v- General Medical Council[2007] EWHC 2606 (Admin). The Committee is nevertheless mindful that this case relates to conduct outside of the Respondent’s professional practice. 35) Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as:

“a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.

Thus, where the conduct is ‘outwith’ the course of professional practice, the ARB may exercise its disciplinary jurisdiction only if the registered architect engages in conduct that satisfies both the following criteria:

1. 1. It is so ‘morally culpable’ or ‘disgraceful’ that it ‘brings disgrace upon the architect’; and
   2. It actually prejudices the reputation of the profession.

In respect of the latter, the High Court categorised found that the conduct must ‘brings’ about prejudice to the reputation of the profession (in Remedy UK). Moreover, that conduct must be such that it would still bring about that prejudice if a reasonable member of the public was aware of the full circumstances.  A regulatory body could not discipline a professional because of the belief that his conduct was particularly reprehensible, even if that view would be displaced by a full awareness of the circumstances.

It should be obvious, considering the above, that the statements made on ASH’s social media account go nowhere near the extremely high threshold before which the conduct of an architect in matters outwith the profession could be disciplined by the ARB. This is all the more so where the alleged conduct is not her statements but statements made by another director of an organisation whom she does not supervise outside her organisation’s provision of architectural services.

Moreover, the case of Kellow is a good example of the type of statements that the ARB has found to be so ‘disgraceful’ that they prejudice the reputation of the profession. In that case, Mr Kellow made a public statement in which he stated, without qualification, that members of the Jewish religion, the Sunni denomination of Islam and (albeit not quite acknowledged by the ARB) the Sikh religion should not be permitted to hold public office because of their membership of religions that he considered to be ‘cults’. This was not only an expression of antipathy towards beliefs or contentious statements about religions; it was an express view that people should be deprived of their civic rights based solely on their religious beliefs — and thus, their protected characteristics. It was thus, contrary to Article 17 of the ECHR, the support for the destruction of the very right — to freedom of conscience and expression — that Mr Kellow prayed in aid in advancing his defence.

This decision demonstrates the chasm between the proper discipline of an architect for the advocacy of the destruction of the civic rights of minorities — on the one hand — and the advocacy of political views that were expressly intended to advance the defence of civic freedoms. And, whether or not a person agrees or disagrees with the position of Dr. Elmer (and of course the ARB should not have a view one way or another) it is undeniable that this was his objective in writing the tweets and academic pieces — however much an individual may be discomforted by the way in which he did so.

Aligned to the above is the requirement that the ARB, as a public body exercising a public (and statutory) function, must act compatibly with Ms. Dening’s rights under the ECHR (s 6 of the HRA). Counsel settling these submissions is indebted to Ben Cooper QC and Anya Palmer, from whose skeleton argument in the ongoing Employment Appeal Tribunal case of Forstarter v CGD Europe and Others the following submissions are taken.[1]  They are extensive. But the ARB has taken it upon itself to investigate an architect because of views written by a non-regulated colleague about intensely political matters wholly unrelated to architecture.  It is essential that the ARB appreciates, in doing so, the high degree of protection the courts give to the free expression of opinion.[3]

Relevant Law 

ECHR Articles 9 and 10

22. It is useful to begin with the relevant principles under Articles 9 and 10 of the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’) because:

22.1 As will be seen, the principles developed in the domestic authorities as to the meaning and scope ofthe protected characteristic of religion and belief under EqA10, s10 are derived from the Article 9 jurisprudence and need to be understood in that context; and

22.2 By virtue of sections 3 and 6 of the Human Rights Act 1998 (‘HRA’), the EqA10 must (so far as possible) be read and given effect in a way which is compatible with the Claimant’s Convention rights:although there is no absolute rule that Convention rights should always be considered first, where they are relevant they must nevertheless be fully considered. In this particular case, it is appropriate to start withArticles 9 and 10 because they inform and shape the analysis under the EqA10 (cf Page v NHS Trust Development Authority [2021] EWCA Civ 255, §§37 & 74 per Underhill LJ).

Relevant provisions of the ECHR 

23. Article 9 contains the right to freedom of thought, conscience and religion. It provides as follows:

Article 9 

1. 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

1. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

24. Article 2 of the First Protocol, concerning the right to education, is also relevant. It provides that the state shall ‘respect the right of parents to ensure . . . education and teaching in conformity with their own religious and philosophical convictions’.

25. Article 10 contains the right to freedom of expression. It provides as follows:

Article 10

1. 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 thelicensing of broadcasting, television or cinema enterprises.

1. 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.

26. Finally, Article 17 concerns the necessary limits on the scope of Convention rights to prevent the protection of acts which are themselves aimed at destroying those rights:

Article 17

Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. 

The foundations of freedom of thought and expression in democratic pluralism

27. The rights protected by Articles 9 and 10 are closely related¹⁴. Both concern the pluralism of ideas and their expression which is essential to a democratic society¹⁵. They complement and reinforce each other: Article 9 protects not only the holding of a belief but also its manifestation and direct expression¹⁶; and under Article 10 a higher level of protection attaches to the expression of beliefs about important aspects of human life or behaviour that contribute to debate on matters of public interest¹⁷.

28. Accordingly, where both Articles 9 and 10 are engaged but a case falls more naturally under one of them, the right approach is to examine the case under the more directly applicable Article but read in light of the other (see Ibragimov & others v Russia, 1413/08 & 28621/11, 4 February 2019 (unreported), ECtHR, 78¹⁸). This case falls most naturally to be considered under Article 9, but Article 10 is also engaged. Therefore, the right approach is to consider the case primarily under Article 9, read in light of Article 10 and its associated jurisprudence.

[ASH’s case falls most naturally to be considered under Article 10 but, as with the case of Forstater but in reverse, those rights should be considered in the light of Article 9 rights to freedom of conscience.]

^14. Ibragimov & others, §78.

^15. Ibid., §§88 & 91; see also Handyside v UK (1979-80) 1 EHRR 737, §49; Metropolitan Church of Bessarabia & others vMoldova (2002) 35 EHRR 13, §114; Vajnai v Hungary (2010) 50 EHRR 44 (2008), §46; Eweida & others v UK (2013) 57 EHRR 8, §79.

^16. Metropolitan Church of Bessarabia, §114; Eweida & others v UK, §§80-82; Ibragimov & others, §89.

^17. Perinçek v Switzerland (2016) 63 EHRR 6, §§197, 230 & 241; Annen v Germany, 3690/10, 26 February 2016 (unreported), §§53 & 64.

^18. Cf also an equivalent approach adopted in relation to claims which engage both Articles 10 and 11, which are similarly closelyrelated: Palomo-Sanchez v Spain [2011] IRLR 934, ECtHR, §§52 & 61.

29. As has already been noted, both Articles 9 and 10 protect the pluralism that is essential in a democratic society. This proposition recurs frequently in the case-law as a truism, often with little explanation or elaboration. But since this appeal directly concerns the threshold for a belief to be worthy of respect in a democratic society, it is particularly important to have firmly in mind how and why the foundations of freedom of belief and expression are rooted in, and essential for, democratic pluralism. Therefore, before turning to the specific principles to be derived from the authorities, the reasons why freedom of thought and expression is fundamental to democratic society merit restatement.

30. The ultimate philosophical foundations of the right to freedom of thought and expression are, of course, contested amongst philosophers, but for present purposes it is sufficient that the following widely-respected grounds are reflected in the jurisprudence, and may be regarded as underpinning the legal rights protected by Articles 9 and Liberal democracy depends upon the twin pillars of:

1. 1. government ‘by the people’ through participatory processes such as political debates, campaigns andelections, which necessarily require that individuals should be able to inform themselves about andcontribute to consideration of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments¹⁹; and
   2. equal respect by the state for each citizen’s capacity to develop his or her own identity and conception of the good life, together with state neutrality in respect of differing conceptions²⁰, because without the ability for citizens to develop, free from coercion, a diversity of beliefs, convictions and world views, effective development of and participation in democratic discourse is again compromised²¹:

‘Where not the person’s own character but the traditions or customs of other people are the ruleof conduct, there is wanting one of the principal ingredients of human happiness, and quite thechief ingredient of individual and social progress.’²²

^19. R v Shayler [2003] 1 AC 247, HL, §21 per Lord Bingham.

^20. Taking Rights Seriously, R. Dworkin (first published 1977), Bloomsbury (2013), Chapter 12: ‘What Rights Do We Have?’: ‘The right to liberties’.

^21. Law, State and Religion in the New Europe: Debates and Dilemmas, Zucca & Ungureanu (eds), Cambridge University Press(2012), Chapter 12: ‘Rights, religion and the public sphere: the European Court of Human Rights in search of a theory?’, Julie Ringelheim.

^22. On Liberty, J. S. Mill (1859), Penguin Classics (1974), Chapter III: ‘Of Individuality, as One of the Elements of Well- Being’.

^23. Religion Without God, R. Dworkin, Harvard University Press (2013), Chapter 3: ‘Religious Freedom’: ‘The New Religious Wars’.

32. Thought and belief come first. The state must respect individual ‘ethical independence’, which requires that the law must remain neutral as between competing beliefs and should not coerce or restrict belief based on any assumption ‘that one conception of how to live, of what makes a successful life, is superior to others’²³. Moreover, the boundaries of freedom of belief cannot be drawn at the point where conflicting beliefs cause hurt or offence: it is human nature that we may find views with which we disagree distressing or offensive – indeed, the more fundamentally important to human life and behaviour the object of disagreement, the more deeply the disagreement is likely to be felt and so the greater the risk of offence. It is, therefore, inherent in the diversity and pluralism of ademocratic society that people who hold opposing beliefs that are offensive or upsetting to each other must be able to coexist. In those circumstances, ‘the role of the authorities . . . is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other’²⁴. Or, as Baroness Hale put it in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, HL, at §77:

‘A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable.’

33. Similarly, freedom to express our beliefs cannot be restricted to the inoffensive or Democratic discourse depends upon the ability to challenge orthodoxy and advance controversial ideasand beliefs. It is a common repressive tool used by those in the ascendancy ‘to stigmatize those who hold the contrary opinion as bad and immoral men. To calumny of this sort, those who hold any unpopular opinion are peculiarly exposed.’²⁵ To restrict speech on grounds of offence or immorality is therefore particularly liable to inhibit the expression of unpopular, minority or unorthodox views, but in any case the taking of offence by one side does not negate the value of the offensive speech as a contribution to the debate — and may indeed underline it, since ‘experience testifies that . . . offence is given whenever the attack is telling and powerful, and that every opponent who pushes them hard, and whom they find it difficult to answer, appears to them, if he shows any strong feeling on the subject, an intemperate opponent’²⁶. So, whichever side gives the offence, it is ‘obvious that law and authority have no business with restraining either’²⁷.

34. As Orwell put it, when castigating illiberalism and intolerance of dissent on the political left in the introduction to Animal Farm (1945)²⁸:

‘If liberty means anything at all, it means the right to tell people what they do not want to hear . . . [Today] it is the liberals who fear liberty and the intellectuals who want to do dirt on the intellect.’

^24. Ibragimov & others, §90; Metropolitan Church of Bessarabia, §116.

^25. On Liberty, J S Mill, op. cit., Chapter II: ‘On Liberty of Thought and Discussion’.

^26. Ibid.

^27. Ibid.

^28. Cited as a relevant underlying principle by Julian Knowles J in R (Miller), §1.

35. The same sentiment is reflected in the well-known dictum of Sedley LJ in Redmond-Bate v DPP[2000] HRLR 249, QB, §20²⁹:

‘Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speaker’s Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of State control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power.’

36. By way of conclusion on the foundations and extent of freedom of thought, belief and expression, some of the key threads are drawn together by Professor George Letsas of UCL in the following passages from his essay ‘Is there a right not to be offended in one’s religious beliefs?’³⁰:

‘It is each person’s responsibility to explore and choose both which ethical ideas to pursue and how to pursue them. Just like the atheist is not expected to have found the value in a religious way of life, the believer is not expected to have found the humorous value in religious jokes. It follows, therefore, that the state cannot force people into discovering particular ethical ideas, let alone particular interpretations of those ethical ideas . . .

‘Moreover, it makes no difference that offences may be gratuitous and deliberate, making no contribution not only to a public debate but also to art. Insulting religious doctrines — through burning crosses, writing heretic books, publishing cartoons — is a way of expressing one’s own conception of the good life that may well have value . . .

‘So if there is ethical value in expressing oneself in a way that offends others’ beliefs, then banning those expressions amounts to prioritising one valuable ethical ideal over another. It amounts to using collective force in order to force some individuals to abandon one ethically valuable practice . . . for the reason that others find it objectionable. And such use of collective force cannot be squared with the requirement that the liberal state treat people as free and equal agents, who are responsible for choosing their own ethical ideals.’

^29. And see to similar effect Handyside, §49.

^30. Chapter 10 of Law, State and Religion in the New Europe, op. cit.

Key principles

37. The following key principles, which are built upon and informed by the foundations outlined above, may be derived from the case law:

37.1 The state’s obligation to secure the protection of the rights guaranteed by Articles 9 and 10 encompasses not only a duty not to interfere with those rights, but also a positive obligation in certain cases to protect against interference by private In particular, the state’s positive obligation is engaged where a private employer dismisses or discriminates against an employee for exercising the rights protected by Articles 9 and 10 (Palomo-Sanchez & others v Spain [2011]IRLR 944, ECtHR, §§59-62; Redfearn v UK [2013] IRLR 51, ECtHR, §§42-43; Eweida & others v UK (2013) 57 EHRR 8, §§83-84).

[This must apply with more force where a public body, such as the ARB disciplines a person for exercising those rights.]

37.2. Protection under Article 9 for one’s internal thoughts and beliefs (the ‘forum internum’) is absolute and unqualified: the state has no business whatsoever controlling or restricting what people privately think or believe and ‘[e]veryone… is entitled to hold whatever beliefs he wishes’ (R(Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, HL, §23 perLord Nicholls; §76 per Baroness Hale; and see also: Eweida & others v UK, §80; Page, §42 per Underhill LJ).

37.3. Article 9 also encompasses freedom to express and manifest one’s belief. This does not include every act that happens to be motivated or influenced by the belief, but does include both (i) direct statements or expressions of the belief; and (ii) manifestation of the belief through acts of worship, teaching, practice or observance which are ‘intimately linked’ to the belief (Arrowsmithv UK (1981) 3 EHRR 218, §§70-71; Van den Dungen v Netherlands, 22828/93, 22 February1995 (unreported), §1; Metropolitan Church of Bessarabia, §114; Eweida & others v UK, §82).Moreover, even where an act or expression that is motivated or influenced by the belief does not strictly fall within the scope of Article 9, it may nevertheless be protected by Article 10 (see e.g. Arrowsmith, §78; Van den Dungen, §2).

37.4. The right to express and manifest one’s beliefs under both Articles 9 and 10 also encompasses a right not to be obliged to express or manifest beliefs that one does not hold (Lee v Ashers Baking Co Ltd & others [2020] AC 413, SC, §§50-52 per Baroness Hale).

37.5 Unlike the unqualified right privately to hold any belief, the right to express and manifest one’s belief (including the right not to be obliged to manifest a belief one does not hold) is not absolute. There are two distinct ways in which the scope of that right is limited and it is important to distinguish between them because, as will be seen, one of the ways in which the Tribunal erred was by failing to do so.

37.6 The first way in which the right to express or manifest a belief is limited is by what may be described as ‘threshold criteria’ that need to be met in order to qualify for protection at all. In the case of the right to express or manifest a belief under Article 9, the threshold criteria are that the belief (i) should relate to matters that are more than merely trivial and which possess a sufficient degree of seriousness and importance; (ii) should attain a basic level of cogency and coherence in the sense of being intelligible and capable of being understood; and (iii) should be worthy of respect in a democratic society and not incompatible with basic standards of human dignity (Campbell and Cosans v UK (1982) 4 EHRR 293, 36; R (Williamson), §§22-23 per Lord Nicholls; §64 per Lord Walker; §76 per Baroness Hale). Overall, these criteria must be understood and applied as no more than ‘modest threshold requirements’ which ‘should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention’ (R (Williamson) [2003] QB 1300, CA, §258 per Arden LJ; HL, §§23-24 per Lord Nicholls).

37.7. The last of those criteria — that the belief should be worthy of respect in a democratic society and not incompatible with basic standards of human dignity — derives from the judgment of the European Court of Human Rights (‘ECtHR’) in Campbell and Cosans, which concerned Article 2 of the First Protocol, though it is clear that the same threshold criteria apply both to that provision and Article 9 (Campbell and Cosans, §36; R (Williamson), §24 per Lord Nicholls; §76 per Baroness Hale). That judgment makes it clear (at §36) that the criterion corresponds with the threshold set by Article 17 for excluding actions that are themselves aimed at destroying the rights protected by the ECHR. A point which merits emphasis here is that this threshold applies equally to Article 10 (R (Miller) v The College of Policing [2020] 4 All ER 31, Admin,§226 per Julian Knowles J): if a belief is ‘not worthy of respect in a democratic society’ then any statement, expression or manifestation of that belief will fall wholly outside the protection of both Articles 9 and 10.

37.8. The ECtHR has repeatedly emphasised that the general purpose of Article 17 is ‘to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention’ and that it is therefore only applicable ‘on an exceptional basis and in extreme cases’ where something equivalent to ‘Nazi-like politics’ is at issue: it applies to the ‘gravest forms of “hate speech”’ which seek ‘to stir up hatred or violence’ or are ‘aimed at the destruction of the rights and freedoms laid down in [the Convention]’ (Vajnai v Hungary (2010) 50 EHRR 44(2008), §§21-26; Ibragimov & others, §§62-63; Lilliendahl v Iceland, 29297/18, 12 May 2020 (unreported), §§24-26; and see also Belief vs. Action in Ladele, Ngole and Forstater, RWintemute, ILJ 50(1) 104, March 2021 at 113-115). It is to be emphasised that the ‘destruction’ of another Convention right is a quite different concept from interference with another Convention right, which may, upon balancing the competing rights, justify imposing some restriction (as discussed further below). At this preliminary stage, Article 17 and the test for whether a belief is so beyond the pale that it is not worthy of respect in a democratic society to impose a ‘high threshold’ that will not be crossed even where the actions in question are ‘highly prejudicial’ but fall short of promoting totalitarianism or its equivalent: the protection of Articles 9 and 10 is therefore not wholly denied even to ‘“less grave” forms of “hate speech”’ which ‘promote intolerance and detestation’ of specific groups (e.g. strongly expressed views that gay people are sinful and ‘deviant’) (Lilliendahl, §§26 & 34-38).

37.9. The threshold criteria apply equally to religious and non-religious beliefs (R (Williamson), HL,§§75-76 per Baroness Hale). In assessing whether those criteria are met, the court or tribunal must take the individual’s beliefs as it finds them and not seek to rationalise them for itself: it is ‘emphatically . . . not for the court to embark on an inquiry into the asserted belief and judge its “validity” by some objective standard’ (R (Williamson), §22 per Lord Nicholls). Beyond those exceptional and extreme cases which fall within Article 17, courts and tribunals have no business assessing the ‘legitimacy’ of beliefs or the way they are expressed, or judging between competing beliefs or moralities. That is so even where the beliefs and/or the way they are expressed may be viewed as offensive or unacceptable by a majority of people: democratic pluralism requires that minority beliefs and those which are challenging, disturbing or offensive are protected just as much as those which are mainstream, orthodox or anodyne. Courts and tribunals must adopt a position of neutrality as between competing conceptions of human life and behaviour (Metropolitan Church of Bessarabia, §§116-117; R (Williamson), CA, §§257-8 per Arden LJ; HL, §22 per Lord Nicholls, §§76-77 per Baroness Hale; Eweida & others v UK, §81; Ibragimov & others, §90).

37.10 The second way in which the right to express or manifest a belief is limited is that restrictions that are prescribed by law may be justified if they are necessary in a democratic society to meet one of the objectives identified in Articles 9(2) and/or 10(2). Restrictions of this kind donot involve entirely excluding the belief or its manifestation or expression from protection, butinstead require an ‘intense focus’ on the particular circumstances in which the actual manifestation or expression of the belief takes place, in order to assess whether the specific restriction is proportionate, having regard to the relative importance of the legitimate aim(s) pursued and the value of the expression or manifestation of belief in light of the particular manner and context of its expression (Vajnai, 53; Trimingham v Associated Newspapers Ltd [2012] 4 AllER 717, QB, §55 per Tugendhat J; Perinçek v Switzerland (2016) 63 EHRR 6, §§207-8; Dulgheriu & another v London Borough of Ealing [2020] 1 WLR 609, CA, §91 per Sir Terence Etherton MR, King & Nicola Davis LJJ; R (Miller), §§240 & 275 per Julian Knowles J; Page v NHSTDA, §§59 & 101 per Underhill LJ).

37.11 The over-arching test to be applied at this stage of the analysis is the well-known four-part³¹ test summarised in Bank Mellat v HM Treasury (No 2) [2014] AC 700, SC, by Lord Sumption at §20 and Lord Reed at §126: the court or tribunal must conduct ‘an exacting analysis of the factual case advanced in defence of the [restrictive] measure’ in order to determine: (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.

^31. The authorities recognise that the four elements of the test, whilst logically separate, inevitably overlap because the same facts are likely to be relevant to more than one of them.

37.12 Whereas, at the international level, the ECtHR [European Court of Human Rights] affords member states a ‘margin of appreciation’ in the application of this test, that doctrine has ‘no application’ when domestic courts and tribunals give effect to Convention rights in domestic law pursuant to the HRA: constitutional principles concerning the separation of powers may mean that, when assessing a legislative measure or decision of an elected official, courts and tribunals will defer, on democratic grounds, to the considered opinion of the elected body or person and allow that body or person a ‘measure of latitude’, but otherwise ‘a national court must confront the interference with a Convention right and decide whether the justification claimed for it has been made out’ (R (Steinfeld & another) v Secretary of State for International Development [2020] AC 1, SC, §27-30 per Lord Kerr). In a case, such as the present, in which the Tribunal is required to give effect to the UK’s positive obligations to protect the Claimant’s rights under Articles 9 and 10 against the actions of a private employer, no question of democratic deference arises: once this stage of the analysis is reached, the Tribunal must therefore ‘confront the interference’ and determine itself whether the restrictive effect of the employer’s actions is justified, applying the requisite ‘intense focus’ to the particular circumstances.

37.13. Although each case will turn on its facts, the jurisprudence at both ECtHR and domestic levels has established certain parameters and principles. For the purposes of this case [and, it is submitted, Ms. Dening’s case], the following five (non-exhaustive) propositions are of particular relevance:

(a) Since Articles 9 and 10 together protect not only ideas and statements that are inoffensive or a matter of indifference but also those that ‘offend, shock or disturb’, it will be difficult to justify any restriction on an expression or manifestation of belief that is merely offensive, disturbing or shocking to others (Handyside v UK (1979- 80) 1 EHRR 737, 49;Redmond-Bate v DPP [2000] HRLR 349, QB, §20 per Sedley LJ; Livingstone v TheAdjudication Panel for England [2006] HRLR 45, Admin,§35 per Collins J; Vajnai, §46). Again, where conflicting beliefs and their expression/manifestation are a source of tension and cause hurt or offence to their respective adherents, the role of the authorities (including courts and tribunals) is to remain neutral and ‘not to remove the cause of the tensions by doing away with pluralism, but to ensure that groups opposed to one another tolerate each other’ (Metropolitan Church of Bessarabia, §116; Ibragimov & others, §90).

(b) Moreover, where the particular expression or manifestation contributes to debate on a question of political and/or public interest, there will be ‘little scope’ for restricting it: ‘heightened protection’ and a higher threshold of tolerance are required for ideas that contribute to such debates, since it is ‘in the nature of political speech to be controversial and often virulent’ or ‘intransigent’ (Vajnai, §§47, 51 & 57; Perinçek, §§197, 230-231 & 239-241; Annen v Germany, 3690/10, 26 February 2016 (unreported), §§53 & 64; R (Miller), §§252, 276 & 286 per Julian Knowles J):

‘[A] legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling — real or imaginary — cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgment. To hold otherwise would mean that freedom of speech and opinion is subjected to a heckler’s veto.’ (Vajnai, §57)

(c) It will, therefore, be particularly difficult, in a case involving the expression or manifestation of a belief that contributes to debate on a political or other matter of publicinterest, to justify any restriction based on a ‘legal rule formulated in general terms’: in such a case, the need to examine the justification for any restriction by reference to the specific context of the particular expression or manifestation becomes even more important (Perinçek, 275; Ibragimov & others, §98; R (Ngole) v University of Sheffield [2019] EWCA Civ 1127; [2019] All ER (D) 20 (Jul), §§5(1) & 123-129 per Irwin & Haddon-Cave LJJ & Sir Jack Beatson).

(d) Generally, in such a case, a restriction is likely to be justified only if the specific expression or manifestation, fairly construed and examined in its immediate or wider context, could be seen as either (i) a direct or indirect call for violence or as justification of violence, or (ii) an attack on a particular person or group which expresses such ‘deep-seated and irrational hatred’ and/or such ‘intolerance and detestation’ that it may be regarded as a form of ‘hate speech’ (Perinçek, §204-8; Ibragimov & others, §94; R (Ngole), §129 per Irwin & Haddon-Cave LJJ & Sir Jack Beatson; R (Miller), §226 per Julian Knowles J; Lilliendahl, §§35-39).

(e) Finally, in the particular context of the state’s positive obligation to protect the rights guaranteed by Articles 9 and 10 by preventing private employers from dismissing or disciplining employees for expressing or manifesting their beliefs, such action by a private employer will be regarded as representing a ‘very severe measure’. It will not, therefore, generally be justified by the mere expression or manifestation of beliefs on social media or elsewhere, but will generally only be justified where the employee’s beliefs lead him or her to act in a way that actually discriminates against the employer’s customers or other employees, or that has some other clear impact on the actual performance, safety or effectiveness of his or her work (Vogt v Germany (1996) 21 EHRR 205,§60-61; Redfearn, §§45-47 & 56-57; Smith v Trafford Housing Trust [2013] IRLR 86, Ch, §§82-85 per Briggs J; Eweida & others, §§94- 95, 99, 102-106 & 107-109; Ngole §§129-130 & 134-136 per Irwin & Haddon-Cave LJJ & Sir Jack Beatson; Page v NHSTDA, §§54-55, 59-62 & 78 per Underhill LJ; and see generally Belief vs. Action in Ladele, Ngole and Forstater, R Wintemute,op.cit.).

[A direct parallel can be drawn with the nature of the threshold where an architect’s comments can be considered to be sufficiently ‘disgraceful’ that, by itself, it actually brings the profession into disrepute.]

24. M.r Cooper QC and Ms. Palmer went on to outline the principles that a tribunal, court or (in this case) regulatory body should adopt in determining whether a person or company has discriminated against a person for her philosophical beliefs, contrary to s 13 or (alternatively) s 19 of the Equality Act 2010. In this case, it is submitted that it is the ARB itself — in investigating public comments by a non-regulated individual associated with a regulated person that express the former’s philosophical beliefs — that is at risk of discriminating directly (alternatively indirectly) against Ms. Dening for her association with Dr. Elmer’s views; and that this discrimination has an indirect effect on Dr. Elmer: not least by the threat it poses to the community interest company of which he is a director and the ‘chilling effect’ it will have on his right to freedom of expression — if not its prevention — through the platform of that company’s social media account.

Religion/belief discrimination under the EqA10

38. The framework of the EqA10 obviously differs from that which applies in respect of ECHR, Articles 9 and 10 but, as has already been noted, the former must be construed (so far as possible) consistently with the latter, and the relevant protections must be intended to be co-extensive (Page v NHSTDA, §37 & 67 per Underhill LJ). The Court of Appeal in Page provides some indication of how the two frameworks fit together in order to achieve the necessary consistency. It is submitted that the interrelationship, which is important for the issues in this appeal, is as follows.

39. First, whether a particular belief is protected under the EqA10 at all depends on whether it falls within the definition of the protected characteristic of ‘religion or belief’ in s10, which provides as follows:

10. Religion or belief

1. 1.  Religion means any religion and a reference to religion includes a reference to a lack of religion.
   2. Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
   3. In relation to the protected characteristic of religion or belief —

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief;
(b) a reference to persons who share a protected characteristic is a reference to persons who areof the same religion or belief.

40. To fall within s10, a belief must therefore be a ‘religious or philosophical belief’. In order to determine the meaning and limits of that definition, in Grainger plc & others v Nicholson [2010] ICR 360, EAT, Burton J reviewed the domestic cases concerning s10 as well as the jurisprudence relating to ECHR, Article 9 and Article 2 of the First Protocol — including in particular Campbell and Cosans and R (Williamson) — and extracted the following criteria (at §24):

• 1. The belief must be genuinely held;
  2. It must be a belief and not an opinion or viewpoint based on the present state of information available.
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  4. It must attain a certain level of cogency, seriousness, cohesion and importance.
  5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

41. These criteria should, of course, be treated as guidance to be understood and applied in light of the underlying and developing jurisprudence, and not as statute (Gray v Mulberry Co (Design) Ltd[2019] ICR 175, EAT, 20 per Choudhury J).

42. It will be apparent that criteria (iii), (iv) and (v) correspond with the ‘threshold criteria’ that constitute the first type of limitation on the right to express or manifest a belief under Article 9, considered at sub-paragraphs 6-37.9 above. They should, therefore, be understood and applied consistently with the jurisprudence applicable to those threshold criteria. This is confirmed in Harron v Chief Constable of Dorset Police [2016] IRLR 481, EAT, §§32-35 per Langstaff J, in which it is also emphasised (consistently with the ECHR jurisprudence) that the bar must not be set too high (and see also Gray, §§27-28 per Choudhury J).

43. At this stage of the analysis under the EqA10, the question is whether the particular belief meets thethreshold criteria in general, not whether some specific expression or manifestation of that beliefis protected. This is a necessary consequence of the structure of the EqA10, which is built around the concept of ‘protected characteristics’, being characteristics which a person possesses that are important to his or her identity and/or ethical autonomy, rather than things that he or she does.

45. This is also inherent in the language of s10 The definition is focused on the nature (‘religious or philosophical’) of the belief in general and does not depend on any particular expression or manifestation of that belief. Similarly, under subsection 10(3), a person has the protected characteristic of religion or belief if she is ‘of’ that religion or belief, not because she does anything in respect of it. This does not mean that the ways in which a claimant expresses or manifests thebelief are irrelevant at this stage of the analysis under the EqA10. The threshold criteria have been developed in the Article 9 jurisprudence in respect of the (qualified) right to express or manifest a belief, rather than the absolute right to hold any belief³². Therefore, it is right that their application under the EqA10, s10, should take account of the ways in which the claimant expresses or manifests the belief in question (see Gray, §§29-31 per Choudhury J). But care is needed to ensure that they are taken into account for the purposes of the correct test under the EqA10, s10 – i.e. whether the belief meets the threshold criteria in general, rather than whether a particular expression or manifestation is protected.

45. Thus, for example, evidence that the ways in which a claimant manifests his or her belief are generally inconsistent or incoherent may be relevant to an assessment of whether in general it attains the requisite (low) level of cogency and cohesion (cf Gray, §28 & 34 per Choudhury J). Similarly, evidence that the ways in which the claimant actually expresses or manifests his or her belief always reach the threshold of being not worthy of respect in a democratic society may support a conclusion that the nature of the belief is such that any expression or manifestation of it will inevitably reach that (high) threshold. The important point is that, at this stage of the analysis, under EqA10, s10, such evidence of manifestation or expression must be used for the purpose of assessing whether the belief meets the threshold criteria in general.

^32. There are no threshold criteria which apply to the absolute right to hold any belief under Article 9 (see sub-paragraph 37.2above). This absolute right is not, therefore, directly replicated in the EqA10 as interpreted in Grainger because any belief must fallwithin s10 in order to be protected. In practice, however, this is unlikely to matter because, in reality, any claim under the EqA10 is likely (at least in the overwhelming majority of cases) to relate to a belief that has been expressed or manifested in some way. An employer will not know about an entirely internal, un-expressed belief in order to directly discriminate against or harass anemployee because of that belief. Similarly, any claim for indirect religion/belief discrimination will, in practice, depend onthere being some interaction between the manifestation or expression of the belief and the employer’s actions or policies. It is, however, conceivable that there may be cases in which it might be necessary to grapple with whether and how EqA10, s10 could be applied so as to protect the absolute right to hold any belief, even one which falls foul of the Grainger criteria. For example, the point might perhaps arise in a case involving direct discrimination based on pure association or perception and not on any actual expression or manifestation of the belief; or with the increasing power of data analysis using artificial intelligence to ‘read minds’ the point may become more important, particularly as regards the provision of goods and services. Nevertheless, the Claimant’s position is that the issue does not arise in this case and for the purposes of this appeal she does not, therefore, seek to challenge the applicability of the Grainger criteria, having regard in particular to their authoritative status at EAT level. However, should this matter proceed further on appeal, the Claimant reserves the right to challenge the correctness of the fifth Grainger criterion should the point become material.

47. Within the structure of the EqA10, protection for particular expressions and manifestations of a belief, and the limits of that protection, then fall to be addressed by reference to the elements of liability under the various causes of action, as follows:

47.1. In a claim for direct discrimination under EqA10, s13, as Underhill LJ explains in Page v NHSTDA (at §68-75), a distinction may be drawn that is analogous to that drawn in victimisation and unlawful detriment claims³³ between (i) action taken by the employer because of the belief and/or its (protected) expression or manifestation³⁴, and (ii) action taken because of the particular way in which the belief is expressed or manifested which justifies that action and is therefore properly ‘separable’ from the belief. Although by a different route, applying that distinction iscapable of replicating the scope of protection under ECHR, Articles 9 and 10 — and is therefore anapproach that must be adopted pursuant to HRA, ss3 and 6. Thus, where the employer does the act in question because of the direct expression of the belief and/or some manifestation that isintimately linked with it, in circumstances where the interference is not justified under Article 9 (read in light of Article 10), then the expression/manifestation will be treated as not properly‘separable’ from the belief and the employer’s act will constitute unlawful direct discrimination. Conversely, any of the following will mean that the expression/manifestation is properly ‘separable’ and so an act done because of that particular expression/manifestation will not constitute unlawful direct discrimination:

^33. See Page v Lord Chancellor & another [2021] EWCA Civ 254, §§54-57 per Underhill LJ; Morris v Metrolink Ratp Dev Ltd [2019] ICR90, CA, §§14-21 per Underhill LJ.

^34. At §74, Underhill LJ equates this protection with the ‘absolute right to hold a religious or other belief’, but that cannot be quite right because (a) it is clear from the way in which he articulates the distinction in §68 that in fact the category of non-separable acts includes protected manifestations of the belief; and (b) as noted in footnote 32  above, the absolute right to hold any belief is not subject to any threshold criteria at all, whereas the structure of the EqA10 clearly requires a belief to fall within s10 before any protection can attach. Therefore, the distinction which is drawn by Underhill in the passage at §§68-73 of his judgment in Page v NHSTDA is better understood as one between, on the one hand, the belief and/or any expression/manifestation that is protected under Article 9 and, on the other, those expressions/ manifestations which are not protected for one or more of the reasons identified here.

(a) If the expression/manifestation is neither a direct expression of the belief (a description that is to be understood broadly in light of Article 10³⁵) nor a manifestation that is ‘intimately linked’ to the belief, then it will be both outside the protection of Article 9 (read in light of Article 10) and ‘separable’ for the purposes of a direct discrimination claim under EqA10, s13 (see sub-paragraph3 above);³⁶

^35. See sub-paragraph 37.3 above and cf Page v NHSTDA, §§50-51 per Underhill LJ. In light of the state’s positive obligation to secure the protection of rights under both Articles 9 and 10, it may be appropriate to adopt a more inclusive approach under the EqA10 in this regard than that which is applied by the ECtHR in respect of Article 9 alone. Precisely how those parameters are to be drawn does not, however, arise for determination in this appeal — at least on the Claimant’s case, since on her case this stage of the analysis has not yet been reached.

(b) If the particular expression/manifestation fails to meet the threshold criteria for protection underArticles 9 and 10 (even though, ex hypothesi, the belief does meet those criteria in general), then it will be both outside the protection of Articles 9 and 10 and ‘separable’ for the purposes of a direct discrimination claim under EqA10, s13; and

(c) Similarly, if in the particular circumstances the employer’s action represents a justified restriction on the particular expression/manifestation, then it will not constitute a breach of Articles 9 and/or 10and the particular expression/manifestation will again be properly ‘separable’ for the purposes of a direct discrimination claim under EqA10, It is, therefore, at this stage of the analysis under EqA10 that the second set of limits under ECHR, Articles 9(2) and 10(2) becomes relevant. This is inherent in the very nature of those limits, since they necessarily require an ‘intense focus’ on the particular circumstances (see sub-paragraph 37.10 above) and so can only be applied by reference to both the particular expression/manifestation and the particular restriction resulting from the employer’s actions. The principles set out in sub-paragraphs 37.10-37.13 above will apply at this stage for the purposes of assessing whether the employer’s action constitutes a justified restriction on the particular expression/manifestation.

^37. That test must now be regarded as essentially the same (at least in most cases) as the ‘because of’ test that applies in respect ofdirect discrimination: Unite the Union v Nailard [2019] ICR 28, CA, §§91-93 per Underhill LJ.

47.3. Finally, in a claim for indirect discrimination under EqA10, s19:

(a) Where the particular disadvantage for the purposes of subsection 19(2)(b) is said to arise from the interaction between the relevant PCP and some action motivated or influenced by the belief that, on proper analysis, does not constitute either direct expression of the belief or a manifestation that is ‘intimately linked’ with it (see sub-paragraphs 3 and 47.1 above), then it will be both outside the protection of Article 9, and will not be regarded as putting persons who share that belief generally at a particular disadvantage for the purposes of that subsection; and

(b) In any event, the test for justification of a restriction under ECHR, Articles 9 and 10 (as set out in sub-paragraphs 10-37.13 above) is easily replicated in the test for justification under subsection 19(2)(d). Again, therefore, it is at this stage of the analysis that the second set of limits under ECHR, Articles 9 and 10 is relevant.

48. Overall, therefore, although by a different route which reflects the different structure and concepts ofthe EqA10 compared with ECHR, Articles 9 and 10, the approach set out above provides a coherent basis for interpreting and applying the EqA10 in a way that achieves the requisite consistency.

Summary of the correct approach to religion/belief discrimination under the EqA10

49. In summary:

49. 1. In order to assess whether a belief falls within EqA10, s10 by reference to the Grainger criteria, then for the purposes of criteria (iii), (iv) and (v):

(a) Those criteria correspond to the threshold criteria for protection under ECHR, Article 9, and must be understood and applied consistently with those threshold criteria and the associated jurisprudence, as set out in sub-paragraphs 6-37.9 above;

(b) The question is whether the belief meets those criteria in general, having regard to the nature of the belief itself and the way in which the claimant generally expresses and/or manifests it;

(c) In relation to the particular criterion of whether the belief is worthy of respect in a democratic society (criterion (v)), the threshold is exceptionally high, equating to the promotion of totalitarianism or its equivalent (as set out in sub-paragraphs 7-37.8 above),and the question is whether any expression or manifestation of that belief would inevitably reach that threshold;

(d) It is not relevant at this stage to consider the extent to which any particular expression/manifestation of the belief may involve some lesser interference with the rights of others, or to engage in any balancing exercise between the claimant’s right to manifest/express the belief and the rights of others: that exercise only becomes relevant in the context of assessing whether the particular actions of the employer about which complaint is made constitute a justified restriction on the particular manifestation/expression in question.

49.2. If the belief meets the threshold criteria for protection and falls within EqA10, s10, then whether the particular actions of the employer constitute a justified restriction on the particular manifestation/expression of the belief for the purposes of ECHR, Articles 9 and 10 will be relevant when determining whether the elements of liability are established in respect of the relevant cause(s) of action. In particular:

(a) If the restriction is justified for the purposes of Articles 9 and 10, then the particular expression/manifestation will be properly ‘separable’ from the belief, such that action by the employer because of that expression/manifestation will not constitute direct discrimination or harassment under EqA10, ss13 and 26, and justification will also be established for the purposes of any indirect discrimination claim under s19(2)(d);

(b) Conversely, if the restriction is not justified for the purposes of Articles 9 and 10, then the particular expression/manifestation will not be properly ‘separable’ from the belief and action taken by the employer because of it will constitute unlawful direct discrimination and/or harassment, and similarly any PCP which places the claimant and others of the same belief at a particular disadvantage will not be justified and will constitute unlawful indirect discrimination; and

(c) In conducting any balancing exercise for those purposes, it is essential to apply an ‘intense focus’ to the particular circumstances concerning the actual manifestation/expression, the actual interference and the relevant context, and to afford the requisite ‘strong’ protection and high degree of tolerance to the expression/manifestation of beliefs on matters of political or other public interest, in accordance with the principles set out in sub-paragraphs 10-37.13 above.

The summary at para 49 of the Forstater submissions sets out the test that arises out of the detailed consideration of the caselaw above. It will be applied in relation to this case in submissions below.

4. Ms. Dening did not make or authorise the statements

The ARB’s statutory responsibility extends to the regulation of architects and architectural firms. It does not have jurisdiction to investigate the conduct of charitable bodies associated with architecture that do not offer architectural services. While ASH does offer architectural services, its primary function is as a community interest and campaigning organisation: one that, as emphasised at the outset of these submissions, has an avowedly political mission.

The suggestion made by the ARB, in its first letter of 27^th January, 2021, was that:

‘While it is accepted that these comments may have been written by someone else, these opinions have been shared in your professional social media profiles where the title ‘architect’ is clearly used.’

The ARB also said that the Architects’ Code (the Code’) applies to the private life of an architect ‘where your conduct may affect your fitness to practise as an architect, or public confidence in the profession’. This is an inaccurate over-simplification of the true test: which is whether conduct is so bad that it ‘brings disgrace’ on the architect and that it does, not merely ‘may’, bring the profession into disrepute.

Subsequently, in its letter of 29^th April, the ARB stated that it was investigating Ms. Dening to consider whether she should face an allegation of unacceptable professional conduct because ‘your organisation’ (ASH) made ‘inappropriate public posts on its Twitter profile which brought the profession into disrepute’.

It should be noted at the outset that ASH has no financial value and that Ms. Dening is one of only two executivedirectors. The ARB is referred to its Articles of Association (filed with these submissions), which provides that ASH’s assets shall not be transferred other than for full consideration and that, if it is wound up, any residual assets may only be transferred to another asset-locked body (clauses 3.1-3.4). ASH cannot properly be described as ‘her’ organisation.

Prior to its foundation, Ms. Dening did ask the permission of the ARB to use the term ‘Architects’ in the plural in the company name. This was because, although she was the only registered architect on the board at that time, the plural implies there was more than one architect. The ARB accepted that ASH already represented a number of unnamed architects and had no objections to the use of the name.

The term Architect is protected. While ASH does offer architectural services, its aims and objectives are best understood from Part 5 of the Articles, which is as follows:

‘The production of alternatives to council estate demolition through designs for infill, build-over and refurbishment that increase housing capacity on the estates and, by renting or selling a proportion of the new homes on the private market, generate the funds to refurbish the existing council homes, while leaving the communities they currently house intact.

‘Support for estate communities in their resistance to the demolition of their homes by working closely with residents over an extended period of time, offering them information about estate regeneration and housing policy from a reservoir of knowledge and tactics pooled from similar campaigns across London.

‘Dissemination of information that aims to counter negative and incorrect perceptions about social housing in the minds of the public, and raise awareness of the role of relevant interest groups, including local authorities, housing associations, property developers and architectural practices, in the regeneration process. Using a variety of means, including protest, publication and propaganda, we are trying to initiate a wider cultural change within the architectural profession.’

(Original emphasis)

The ARB regulates only individual architects not companies and its disciplinary role extends only to them (s 13 of the Architects Act 1997 (‘the 1997 Act’)). As the lead architect, Ms. Dening is responsible for the architectural services provided by ASH’s practice, under her supervision.  The ARB is not responsible for regulating the other services it provides – whether under her supervision or not – including its social campaigning and social media platform. This extends also to the work of its accountants, graphic designers, filmmakers, photographers, artists (other than when engaging in architectural draftsmanship) or writers who may work for or collaborate with ASH generally or on a project-by-project basis.  Nor is the ARB responsible for regulating non-registered persons such as Dr. Elmer who are directors but are responsible only for campaigning and offering services that are not directly architectural in nature.

While it is correct to say that the ARB does have jurisdiction over Ms. Dening, even where she acts in a private capacity, its jurisdiction outside her professional practice extends only to her conduct and only where that conduct reaches the extremely high threshold of being so ‘disgraceful’ or ‘morally culpable’ that it actually brings the profession into disrepute.

In this case, the ARB appears to have confused its regulatory jurisdiction over Ms Dening’s conduct within her professional practice and her conduct outside it. In particular:

(1) It has asserted jurisdiction over statements made by a practice that is regulated by the ARB only insofar as it provides architectural services — which is only a part of its charitable work.

(2) As a matter of fact, the statements were made by a director who is not regulated by the ARB and whose supervisory responsibilities for ASH do not extend to its provision of architectural services.

(3) Ms Dening does not supervise Dr. Elmer in any of his other professional or managerial duties for ASH and would not have had the right to prevent Dr. Elmer from expressing views through ASH’s social media platform, he being a fellow director.

(4) Further and in any event, Ms. Dening neither wrote the comments or articles herself nor authorised them in advance of their publication.

Consequently, it is submitted that the ARB has no jurisdiction to discipline Ms. Dening for comments not made or authorised by her that were not made by ASH in or connected to its provision of architectural services.

Further and alternatively, the independent actions of an unregulated fellow director of a mixed practice (one providing architectural services but also unregulated services) are not Ms. Dening’s actions and so cannot be considered part of her ‘conduct’, ‘disgraceful’ or otherwise.

Further and alternatively, even if (contrary to the above submissions and which is not admitted) the ARB finds that Ms. Dening had some residual responsibility for the comments of ASH that she did not authorise, the making of those comments by an independent director over whom she has no supervisory responsibilities is an action so remote that it cannot reasonably or rationally be considered to ‘bring disgrace’ on her as an architect or an ordinary citizen. This is independent of the second criterion — which must also be found before the ARB may discipline Ms. Dening — that a reasonable member of the public, in possession of the full facts, could consider that comments made by another director in a mixed practice actually prejudiced the reputation of the architectural profession.

Finally, in considering this part of the submissions, the ARB should bear close attention to the substantial evidence of the distinguished career and unblemished character of Ms. Dening, which is set out thoroughly and sensitively by Dr. Elmer in paragraphs 80 to 94 of his witness statement. Only one part of this, paragraph 90, speaks for itself:

‘The work of ASH has been discussed in the Architects’ Journal, The Observer, The Guardian, the Evening Standard, The Morning Star, Building Design, ArchDaily, the RIBA Journal, Open Democracy, City, Huffington Post, Inside Housing, Architecture and Culture, Designers in Residence, the Architecture Foundation, Vice, Future Cities Project, Critical Social Policy, Arch+, Cahdco, and The Institute of Race Relations. Ms. Dening’s design work has been discussed in 8 published academic books that we know of, including Anna Minton’s Big Capital: Who is London For? (2017), David Madden and Peter Marcuse’s In Defense of Housing, The Politics of Crisis (2018), Brett Christophers’ The New Enclosure: The Appropriation of Public Land in Neo-liberal Britain (2018), Anitra Nelson and François Schneider’s Housing for Degrowth: Principles, Models, Challenges and Opportunities (2019) and Paul Watt’s Estate Regeneration and its Discontents: Public Housing, Place and Inequality in London (2021). The work of ASH has appeared in several films, including Dispossession: The Great Social Housing Swindle (Velvet Joy Productions, 2017), Concrete Soldiers (Woolfe Vision, 2017), Empty Housing in London (Design Buildings Wiki, 2018), Cronaca di un disastro: 1. La torre Grenfell (Millstream Films and Media, 2020), and she has been interviewed on RT UK News about the Grenfell Tower fire. ASH’s work has been exhibited at Peer Gallery, Cubitt Gallery, the London Estates Forum at City Hall, the Institute of Contemporary Art, the Serpentine Sackler Gallery, and 221A Gallery, Vancouver. ASH’s report, The Truth about Grenfell Tower: A Report by Architects for Social Housing, was submitted by the Grenfell Action Group to the consultation on the terms of reference for the Grenfell Inquiry; and Jamie Burton, of Doughty Street Chambers, has informed us that “our reports have been used by way of research by the lawyers representing the families”. Finally, in 2018, Geraldine Dening was voted one of the 30 most influential architects in London by the Evening Standard; in 2019 she was entered into Who’s Who; and this year she was accepted onto the experts advisory board of the Design Council.’

In addition, the ARB should have regard to the exceptional reputation of ASH, developed by Ms. Dening and Dr. Elmer, which is set out thoroughly at paragraphs 57 to 65 of Dr. Elmer’s witness statement (and accompanying appendices).

In summary, on this ground alone there can be no arguable case either that Ms. Dening brought disgrace on herself or that her conduct prejudiced the architectural profession; and that is so irrespective of the content of the statements made by Dr. Elmer.

5. Abuse of Process

The grounds for believing that the ARB’s investigation into ASH and Ms. Dening is as a result of one or more complaints by Mr. Astbury and/or Mr. White are set out at paragraphs 6 and 14 to 16 of these submissions. As has been said, the ARB will know whether complaints were made by one or both of these individuals and is asked to consider this part of these submissions only if they were.

The targeted harassment to which Ms. Dening and ASH have been subjected and an explanation of the form of cyber bullying that they have undertaken is set out in detail in paragraphs 72 to 79 of the witness statement of Dr. Elmer. That conduct amounts to harassment, contrary to ss 1 to 3 of the Protection from Harassment Act 1997.  It should be noted that a course of conduct amounting to harassment is not merely a civil matter but a criminal offence.  At para 29 of the judgment of the Court of Appeal in Thomas v News Group Newspapers Ltd and Another ([2001] EWCA Civ 1233) Lord Phillips MR held that, to constitute harassment, the behaviour complained of must be ‘calculated, oppressive, unreasonable and targeted’.

In her judgment in Allen v London Borough of Southwark ([2008] EWCA Civ 1478), Arden LJ (as she then was; and whose judgment accorded with the unanimous findings of the Court of Appeal), found as follows (at para 28):

“Finally on one small point, Longmore LJ referred to the judgment of Gray J in Sharma v Jay. For my own part I doubt whether the first point referred to by the learned judge is good law now. The case was decided in 2003 before Majrowski [v Guys and St Thomas’s NHS Trust [2006] UKHL 34] and the particular paragraph reads “that in order to constitute harassment the conduct must be calculated (ie likely) to produce the consequence that the Claimant is alarmed or distressed”. In the Majrowski case Baroness Hale said at para 66 of her speech:

“All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even though no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.”

Moreover, Longmore LJ, giving the judgment of the Court, also pointed to the speech of Lord Nicholls in Majrowski, in which he did not hold that the behaviour must be ‘calculated’ to cause harassment or ‘targeted’ at an individual, holding, rather, that:

‘[Where] the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under s 2 [of the 1997 Act].’

It is important to note that the mens rea (mental element) of the offence is that the defendant pursues a course of conduct amounting to harassment which she ‘knows or ought to know amounts to harassment of another’ (s 1 (1) (b), emphasis added). Significantly, a claim (and/or offence) of harassment is made out if the defendant only ‘ought to’ have known that his conduct amounted to harassment.  This is impossible to reconcile with a finding that the behaviour must have been ‘targeted’ at a victim and/or ‘calculated’ to cause harassment.

So, while behaviour need not be targeted to constitute harassment, the behaviour of Mr Astbury and Mr Wright was targeted, which makes it all the more serious.

Since the early years of the application of the 1997 Act, the Courts have recognised that a person can be guilty of a course of conduct amounting to harassment through using litigation in a manner that is oppressive and unreasonable (Baron v CPS (unreported, 13^th June 2000, per Morison J); Allen (supra).

In Merelie v Newcastle Primary Care Trust ([2004] EWHC 2554), Eadie J summarised the behaviour he found could amount to harassment in that case, in addition to citing Morison J’s findings in relation to behaviour during the course of litigation that can amount to harassment:

“[32] There is much to be said for the view that the adoption of statutory or domestic disciplinary procedures should not be characterised as harassment because of the scope for duplication of issues and costly satellite litigation. Yet I must bear in mind the decision of the Divisional Court in Baron v CPS, 13 June 2000 (unreported). There, harassment had been found proved in respect of the appellant’s conduct which consisted partly of abusing officers of the Benefits Agency in letters and partly, more specifically, in threatening to abuse his rights as a cross-examiner and to serve witness orders on people in person. The harassment took place therefore, in part, within the framework of legal procedures. Yet it is important to note that it was the abuse of those procedures which constituted harassment. That is essentially the Claimant’s case here with regard to the grievance and disciplinary procedures instituted against her. Morison J made the following general observation:

“Equally, citizens have an unfettered access to the Courts to resolve disputes and to conduct those proceedings forcefully, causing legitimate aggravation to the other party within the procedural rules. Persons will or may feel harassed as a result of the lawful conduct of forcefully conducted litigation. On the other hand, if proceedings are being used for an ulterior purpose, namely not to air legitimate grievances but to cause distress to those involved in the process, then the line may be crossed and the acts may become unlawful under the Protection from Harassment Act 1997.”

It is notable that Baron established that oppressive behaviour during one set of proceedings could amount to harassment, were it oppressive and unreasonable and aimed at causing distress. This conclusion must be right: ‘proceedings’ are referred to in the plural for good reason.  A case can only proceed to trial through a series of actions — a ‘course of conduct’: the issuance of a claim form and particulars, the attendance at interlocutory hearings; the service of disclosure, the service of witness statements, the attendance at trial and the giving of evidence.

It is submitted that, if they made the complaint from which this investigation arose, Mr. Astbury and/or Mr. White are using these proceedings as a part of their campaign of harassment against Ms. Dening. On that ground, the investigation is an abuse of process. The ARB will (if complaint/s were made by those individuals) have allowed itself to be used (unwittingly) as part of an unpleasant and criminal (as a course of conduct contrary to the 1997 Act) campaign against Ms. Dening.

Finally, Ms. Dening emphasises she does not allege that the ARB has been used knowingly to be a part of this campaign of harassment. There is no reason why it should have been aware of this campaign. That said, now that it is aware of it, it must (in the event complaints were made by either individual) act properly and prevent its procedures from being abused in this way. The only manner in which it can do so adequately is by dismissing those allegations. Indeed, not to do so risks bringing the reputation of the ARB itself into disrepute. 

6. The comments cannot be considered to have ‘brought disgrace’
on the person making them, having regard to ECHR rights

Dr. Elmer has presented a careful, thoughtful and eloquent defence both of his (by definition short) tweets and of what were, in turn, thoughtful and detailed analyses of the authoritarian nature (as he sees it) of the government’s response to the Coronavirus pandemic. What he demonstrates beyond doubt is that these were the expression of a coherent and careful response to government policy.  They were opinions expressed on a political question by a highly political campaigning organisation.  The ARB can be in no doubt, having read Dr. Elmer’s statement, that they were far from casual or flippant remarks borne of ignorance, prejudice or both.

First, the threshold that must be met by the ARB before it may properly discipline an architect for conduct outside the practice of the profession is extremely high. There is no reasonable or rational basis on which Dr. Elmer’s comments and other writings could be considered to ‘bring disgrace’ on him, still less on Ms. Dening whose association with them is extremely indirect in the absence of having authorised them.  And it could not be said by any reasonable observer that those comments could bring the profession into disrepute.

Secondly, the ARB must apply the detailed guidance of the courts concerning the protection of the freedom of conscience of Dr. Elmer and Ms. Dening and of their right to the expression of their beliefs. Having read the detailed submissions set out above and applied them to Dr. Elmer’s analysis, it will be obvious that no court, tribunal or regulatory body could possibly discipline any person for expressing those views; and that any attempt to do so would be a grossly disproportionate interference with their rights under Articles 9 and 10 of the ECHR.

It has already been submitted that there is no case to answer against Ms. Dening because she did not write or approve any of the tweets or articles written by Dr. Elmer and/or promoted through ASH’s twitter account. If that submission is accepted, the ARB need not consider whether its investigation amounts to a breach of her Article 9 and Article 10 rights.  If, on the other hand, the ARB consider that it may investigate her because of the opinions expressed by Dr. Elmer, it will have reached the conclusion that she must bear responsibility for them.  In that case, it is obliged not to breach hers and Dr. Elmer’s rights to freedom of conscience and expression by preventing the free expression of their political opinions.

7. Discrimination on the basis of the protected characteristic
of philosophical belief

The ARB is directed, first, to the detailed analysis of the legal principles that must be applied when considering discrimination on the grounds of this protected characteristic.

Dr. Elmer’s philosophical beliefs fall squarely within those that must be given the protection afforded by s 13 (or alternatively s 19) of the 2010 Act. In respect of the Grainger guidance:

1. 1. His beliefs are genuinely held;
   2. They are a belief and not an opinion or viewpoint based on the present state of information available; in this regard, they are not a response merely to scientific or other information available about the nature of SARS-CoV-2 or the most efficacious means of addressing it: rather, they are beliefs about how society is governed, the nature of freedom, the nature of responsibility and the appropriate consideration of the historical precedent of autocratic regimes of the past;
   3. There can be no doubt that beliefs about the appropriateness of ‘lockdowns’ and other authoritarian (as Dr. Elmer sees it) responses concern a ‘weighty and substantial aspect of human life and behaviour’: they have dominated the experience and public life of this country and all others for well over one year and will continue to do (including in respect of how they are reviewed and considered in retrospect) for some time to come;
   4. Dr. Elmer’s views attain much more than a ‘certain level’ of cogency, seriousness, cohesion and importance: they are detailed, carefully and intelligently considered and thoughtful; and
   5. His views are worthy of respect in a democratic society and are not incompatible with human dignity and do not conflict with the fundamental rights of others; this threshold is exceptionally high, equating to the promotion of totalitarianism or its equivalent (as set out in sub-paragraphs 37.7-37.8 of the Forstarter submissions and relying on the case law set out there): it could not possibly include a careful analysis of how totalitarianism must (in the author’s view) be avoided.

While the ARB does not regulate Dr. Elmer, its investigation and (more so) any disciplinary action taken against Ms. Dening would have a direct impact on his ability to express his political views through the campaigning organisation of which he — independently of Ms. Dening — is a director. Any sanction on Ms. Dening for views expressed by ASH or its other (unregulated) directors will have the effect that either: (a) Ms. Dening would have to resign from ASH if she wished to avoid being disciplined for its political statements in which Dr. Elmer expresses his philosophical beliefs; or (b) ASH — and through ASH, Dr. Elmer — would have to desist from making statements expressing his philosophical beliefs.  In either event, the actions have the effect of treating Dr. Elmer – as a director of an organisation that is (effectively if indirectly) being investigated and potentially sanctioned by the ARB – less favourably because of his philosophical belief.

The test to be applied in this regard is whether there is a prima facie case that the actions of ARB are because of Dr. Elmer’s philosophical beliefs. There can be no doubt that they are: the express reason for the investigation is his expression of those beliefs.

It is respectfully submitted, further, that Ms. Dening and (indirectly), ASH and Dr. Elmer have been treated less favourably because of those philosophical beliefs. The ARB is not believed to have disciplined any person or organisation for their expression of belief in a philosophy that encourages the removal of civic rights, the accretion to the state of powers never before exercised in a pandemic (at least in modern times) or of the blanket removal of (for example) freedom of association and assembly.  Those views are held by anyone who — contrary to Dr. Elmer — advocates the unprecedented behaviour of governments who have imposed ‘lockdowns’ on their populations. Those views are as deserving of protection as those of Dr Elmer.  But it could also be said — and Dr Elmer has said it — that they are in fact highly authoritarian and a dangerous departure from liberal democratic norms.

Thus, if the ARB is not disciplining those who advocated for (arguably) undemocratic restrictions of civil rights — and it is not — it is treating those who argue against those measures less favourably; and it is doing so because of their expression of a contrary philosophical belief.

Thus, this investigation amounts to the unlawful discrimination against ASH and Dr. Elmer and, because she is being directly identified with their beliefs, of Ms. Dening.

Conclusion

The ARB does not have the jurisdiction to punish Ms. Dening for comments she did not authorise by a director of a mixed practice that were not made as part of that practice’s provision of architectural services.

If this investigation arose from one or more complaints by Mr. Astbury or Mr. White, the ARB has unwittingly allowed itself to become a vehicle for a campaign of harassment against Ms. Dening and ASH. The investigation is thus an abuse of process and should be terminated.

The comments made by Dr. Elmer — in themselves or insofar as they can be associated with M.s Dening — do not arguably amount to conduct that brings disrepute on either of them; and any further investigation would be a disproportionate interference with the exercise of their right to freedom of conscience and the expression of their political beliefs, contrary to Articles 9 and 10 of the ECHR.

Finally, this investigation amounts to the direct discrimination against Ms. Dening, ASH and Dr. Elmer for their philosophical beliefs; the investigation may still amount to discrimination against Dr. Elmer even though he is not directly regulated in view of the direct effect it will or could have on his ability to express those opinions as the non-regulated director of a mixed practice; and it amounts to discrimination against Ms Dening as it arises from her association with that philosophical belief.

In the premises, there is no arguable case against Ms Dening and these complaints should be dismissed without a formal hearing.

Francis Hoar
Barrister
Field Court Chambers

[1] That appeal concerns the freedom of expression of an employee and her alleged discrimination because of her protected characteristic of her philosophical belief.  While they are submissions and not the findings of a court, they bring together the legal principles — by reference to and derived from caselaw — admirably.  Those and other submissions can be found here: https://hiyamaya.net/employment-appeal/.

[2] Footnotes to the Forstater submissions are included in the text using their original numbers to avoid confusion. Comments by the author of these submissions are [in italics within squared brackets].

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The Judgement in the Maya Forester Appeal 

On 10 June, the Employment Appeal Tribunal upheld Maya Forstater’s appeal. Extracts from Forstater v CGD Europe (2020) EAT, which endorse the outline of the case law developed in Francis Hoar’s submissions, are presented below:

53. Having identified the belief in question, the next task of the Tribunal was to determine whether that belief amounted to a philosophical belief within the meaning of s.10, EqA. Given that domestic statutory provisions are to be read and understood conformably with the ECHR, it is appropriate to consider the effect of Articles 9 and 10, ECHR first, as that is likely to inform the analysis of s.10, EqA. We note, however, that there is no rule that the analysis should always follow this sequence: see Page v NHS Trust Development Authority [2021] EWCA Civ 255 at para 37.

55. Articles 9 and 10 are set out above. The rights protected by these articles have been described by the ECtHR as “closely linked” and the approach to be taken is to consider the case law in relation to the most directly applicable right, interpreted where appropriate in light of the other: see Ibragimov v Russia 1413/08 & 28621/11, 4 February 2019 at para 78. It is not in dispute that the most directly applicable right here is the Article 9 right to freedom of belief.

55. We were referred to numerous authorities emphasising the high importance attached by the ECtHR to diversity or pluralism of thought, belief and expression and their foundational role in a liberal democracy. It is not necessary, in our view, to lengthen this judgment by setting out all of them. It is sufficient for present purposes to remind ourselves of the following principles:

(a) Freedom of expression is one of the essential foundations of democratic society:

“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. Subject to Article 10 (2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’, or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.” Handyside v UK (1979-80) 1 EHRR 737 at para 49.

(b) The paramount guiding principle in assessing any belief is that it is not for the Court to inquire into its validity:

“22. It is necessary first to clarify the court’s role in identifying a religious belief calling for protection under article 9. When the genuineness of a claimant’s professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry. The court is concerned to ensure an assertion of religious belief is made in good faith: “neither fictitious, nor capricious, and that it is not an artifice”, to adopt the felicitous phrase of Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1 , 27, para 52. But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its “validity” by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. As Iaccobucci J also noted, at p 28, para 54, religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising. The European Court of Human Rights has rightly noted that “in principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the state of the legitimacy of religious beliefs or of the manner in which these are expressed”: Metropolitan Church of Bessarabia v Moldova (2001) 35 EHRR 306 , 335, para 117. The relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.

23. Everyone, therefore, is entitled to hold whatever beliefs he wishes. But when questions of “manifestation” arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard.  Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual’s beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention: see Arden LJ [2003] QB 1300, 1371, para 258: per Lord Nicholls in R (Williamson) V Secretary of State for Education and Employment [2005] 2 AC 246.” (Emphasis added)

(c) The freedom to hold whatever belief one likes goes hand-in-hand with the State remaining neutral as between competing beliefs, refraining from expressing any judgment as to whether a particular belief is more acceptable than another, and ensuring that groups opposed to one another tolerate each other: Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 13 at paras 115 and 116.

(d) A belief that has the protection of Article 9 is one that only needs to satisfy very modest threshold requirements. As stated by Lord Nicholls in R (Williamson), those threshold requirements “should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention.” In other words, the bar should not be set too high: see Harron v Chief Constable of Dorset Police [2016] IRLR 481 (EAT), per Langstaff P at para 34 and Gray v Mulberry at para 27.

59. The ECtHR’s reference to Article 17, ECHR, is instructive. Article 17, ECHR, prohibits the use of the ECHR to destroy the rights of others. It becomes relevant where a State, group or person seeks to rely on Convention rights in a way that blatantly violates the rights and values protected by the Convention. One cannot, for example, rely on the right to freedom of expression to espouse hatred, violence or a totalitarian ideology that is wholly incompatible with the  principles of democracy: see the ECtHR’s Guide on Article 17 of ECHR at para 26. The level at which Article 17 becomes relevant is clearly (and necessarily) a high one. The fundamental freedoms and rights conferred by the Convention would be seriously diminished if Article 17, and the effective denial of a Convention right, could be too readily invoked: see Vajnai v Hungary (2010) 50 EHRR 44 at paras 21 to 26. Thus, when the ECtHR refers to Article 17 (as it did in Campbell and Cosans v UK) in considering whether a philosophical conviction is worthy of respect in a democratic society and not in conflict with the fundamental rights of others, it would have had in mind that it is only a conviction that e.g. challenges the very notion of democracy that would not command such respect. To maintain the plurality that is the hallmark of a functioning democracy, the range of beliefs and convictions that must be tolerated is very broad. It is not enough that a belief or a statement has the potential to “offend, shock or disturb” (see Vajnai at para 46) a section (or even most) of society that it should be deprived of protection under Articles 9 (freedom of thought, conscience and belief) or Article 10 (freedom of expression). The stipulation that the conviction or belief must not be in conflict with the fundamental rights of others must also be viewed with regard to Article 17. The conflict between rights in this context of satisfying threshold requirements is not merely that which would arise in any case where the exercise of one right might have an impact on the ECHR rights of another; in order for a conviction or belief to satisfy threshold requirements to qualify for protection, it need only be established that it does not have the effect of destroying the rights of others.

77. We agree with Ms. Monaghan that I was wrong to read the remarks of Lord Nicholls and Lord Walker in R (Williamson) as meaning that, at the stage of applying the Grainger Criteria, the focus should be on manifestation. Manifestation is not irrelevant: the belief may only come to the employer’s attention because of some outward manifestation. The Claimant’s tweets in this case are an example. Had she not sent those tweets or expressed her beliefs in any discernible way, then the issues giving rise to this appeal would not have arisen at all. Moreover, as I said in Gray (EAT), the manner in which a person manifests their belief might, in some cases, be relevant in determining whether the belief has the requisite degree of cogency or cohesion to satisfy Grainger IV. However, we accept Ms Monaghan’s and Mr Cooper’s submission that at this preliminary stage of assessing whether the belief even qualifies for protection, manifestation can be no more than a part of the analysis (assuming that there is any manifestation at all) and should be considered only in determining whether the belief meets the threshold requirements in general. It is also right to note that an approach that places the focus on manifestation might lead the Tribunal to consider whether a particular expression or mode of expression of the belief is protected, rather than concentrating on the belief in general and assessing whether it meets the Grainger Criteria.

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The Decision of the Architects Registration Board

On 14 June, nearly 5 months after we were first accused by the ARB of bringing the profession into disrepute, we received the following letter from the investigation office, Matthew Harding: