As previously reported, it has come to light that the Green Party of England and Wales (GPEW) has spent £1 million on legal fees over the past four years. However, more concerning is that a portion of these fees was used to obtain legal advice, which the Party then disregarded.
In February 2023, the Party sought legal advice from its solicitors, Bates Wells, regarding the treatment of gender-critical members. The advice detailed how the Party could and could not lawfully act in such matters. Yet, just a month later, Mary Clegg, who served as the GPEW CEO until her resignation at the September 2024 Party Conference, issued a distorted and incomplete version of this legal advice. This modified version was shared with key Party bodies, including the Disciplinary Committee (DC), the Disputes & Complaints Referral Group, and representatives from the Green Party Regional Council (GPRC). These bodies have the authority to place members under no-fault suspension (NFS), and the altered advice likely influenced their decisions.
Had these officers been made aware of the correct legal position, they could have avoided some of the mistakes that led to unfair suspensions and expulsions, notably affecting members of the Greens in Exile group, and possibly precluding costly future legal actions.
The legal advice
Bates Wells’ original advice clearly stated in paragraph 8:
“Following the case of Forstater v CGD Europe (June 2021), a ‘gender-critical belief’ is a protected belief under the Equality Act (EqA), and individuals holding such beliefs are entitled to freedom of expression (under Articles 9 and 10 of the European Convention on Human Rights), provided that their expression does not seek to infringe on the rights of others.”
This contrasts significantly with the version shared by Mary Clegg, which stated:
“We can apply a disciplinary sanction, enact a no-fault suspension, or expel a member under 4.8 of the Constitution if they express their beliefs in a way that breaches the Code of Conduct. In broad terms: ‘sanctioning behaviour, not belief.’”
Clegg’s interpretation — adopted by the Party — suggested that members could be lawfully sanctioned based on their behaviour. While this may hold true in certain situations, it has not yet been tested in the courts. Notably, Clegg’s version extends beyond the advice provided by Bates Wells.
Furthermore, Bates Wells cited examples from the Forstater case to illustrate what types of behaviour would not justify lawful discrimination. These examples, omitted from Clegg’s version, highlight the high threshold required to sanction members based on their gender-critical beliefs. For example, para 32 of the Bates Wells’ advice states:
32. The following are some examples of [Maya Forstater’s] tweets and, therefore, tweets which have been found by the Employment Appeal Tribunal to be lawful manifestations of gender critical beliefs:
“I honestly don’t see the difference between Rachel Dolezal’s internal feeling that she is black and a man’s internal feeling that he is a women (i.e. an adult human female). Neither has basis in material reality.”
“I am perfectly happy to use preferred pronouns and accept everyone’s humanity and right to free expression. Transwomen and transwomen [sic]. That’s great. Enforcing the dogma that transwomen are women is totalitarian.”
“The majority of transwomen are intact males (i.e. social not surgical transition). Being forced to share sleeping accommodation, showers, changing etc. or be subject to intimate searches by a transwoman will be just as humiliating and scary as if it was any other man.”
33. Statements like those cited above are expressions of gender critical beliefs that the court considers are unlikely to interfere with the rights of others.
Mary Clegg removed all these examples from her version of the advice, which raises questions about why she misled the party into thinking they could punish lawful behaviour and expression of belief.
Questions raised about the legal advice
Following the Party’s legal defeat in February 2024, when it lost the case brought by former Deputy Leader Shahrar Ali, a joint meeting was held involving GPEx, GPRC, and DC to review the Party’s legal strategy and advice. However, the advice under review was not the original Bates Wells advice but the altered version distributed by Clegg. Robbie Spence, who was one of the DC reps at the meeting (before he got suspended again in March 2024) recalls that many questions were asked and recorded with a promise by GPEx Chair Jon Nott that he would raise them with Bates Wells.
Nott has yet to follow through on his commitment to seek clarification from Bates Wells. This inaction has perpetuated the confusion and unjust processes within the Party.
Had the correct legal advice been provided to members and decision-makers in a timely manner, the Party might have avoided its costly and damaging loss in the case brought by Shahrar Ali.
Greens in Exile urge Party members to attend the Party’s online AGM on Saturday, 9 November, to hold the leadership accountable. Members are also encouraged to ensure their regional and local parties obtain and follow the Bates Wells advice below to avoid further injustices.
Register for the AGM