Law vs cancel culture

Holbrook’s experience of being cancelled for his political beliefs – expelled by his former chambers and harassed by his regulator, the Bar Standards Board (BSB) – prompted him to respond:

1st: the BSB backed down – mostly

In 2021 the BSB brought disciplinary charges against Holbrook claiming he had brought the profession into disrepute with 18 tweets ‘designed to demean or insult others’. Holbrook argued that the BSB was unlawfully deploying its woke beliefs to silence his anti-woke and pro-conservative tweets. But as Lord Steyn put it:

freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is the safety valve; people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.

R v Shayler [2003] 1 AC 247, HL, §21, cited in Miller v College of Policing [2020] EWCH 225, §4

You can read Holbrook’s response to the BSB’s charges here and the BSB’s decision to back-down on 17 of the 18 tweets is here.

2nd: Holbrook won his appeal

The BSB imposed an ‘administrative sanction’ of a £500 fine and a we-are-watching-you warning for one of the 18 tweets. The Big Brother nature of this sanction was typified by the fact that it was imposed:

  • by a panel sitting in private (Holbrook was not allowed to address it),
  • despite a finding that Holbrook’s tweet was not a disciplinary matter, and
  • on a confidential basis, so that Holbrook had to fight for a ruling that his appeal be heard in public (see here).

Holbrook’s appeal notice to the Bar Tribunals & Adjudication Service (BTAS) is here. In a ruling that restates the democratic importance of the right to speak freely, BTAS overturned the administrative sanction after noting that (see here):

  • For the expression of a political belief to bring the profession into disrepute this ‘will require something more than the mere causing of offence. At the very least, the relevant speech would have to be “seriously offensive” or “seriously discreditable”‘. §44
  • Even if that threshold were reached, ‘there would have to be a close consideration of the facts to establish that the speech had gone beyond the wide latitude allowed for the expression of a political belief, particularly where the speech was delivered without any derogatory or abusive language and the objection was taken to the political belief or message being espoused, rather than the manner in which that belief or message was being delivered.’ §44
  • The BSB’s Social Media Guidance of October 2019 did not lawfully state the law with its claim that comments merely considered ‘offensive’ could bring the profession into disrepute. §§45, 46, 47
  • Political statements outside the course of professional practice may only attract a sanction if they involve ‘conduct of a morally culpable or otherwise disgraceful kind … which brings disgrace upon the [barrister] and thereby prejudices the reputation of the profession’. §§50, 56, 57

3rd: Holbrook sues his former chambers

Having cleared his name and reputation with the BSB Holbrook focused on a belief discrimination claim, seeking £3m damages. He alleges that Cornerstone Barristers expelled him for expressing his anti-woke politics as a social conservative in the manner of the late Sir Roger Scruton.

My case and other belief discrimination claims challenge the law to deliver justice for those punished for exercising their democratic right of free speech. 

In time, the law will hopefully establish that those who practise belief discrimination are no better than those who practise race discrimination or any of the other oppressions that democracies abhor.

Jon Holbrook, Daily Mail, 19 August 2022

Holbrook’s employment tribunal claim is here.

Although the claim was struck out as being out of time (see here) this ruling is under appeal on the grounds that Employment Judge Gillian Brown unlawfully exercised her ‘just and equitable’ jurisdiction. Holbrook’s grounds of appeal, drafted by Ben Cooper KC and filed September 2022, are here.