This case is about protecting the right to discuss and express views that may offend some people, but not all people. It is about our right to disagree, which is being gradually eroded by quangos which use their power to prosecute and punish, in order to gag speech that some people might dislike. This is suffocating freedom of speech in our free, or supposedly free, society.
Our member, Feliks Kwiatkowski, needs your help. After four decades as a barrister, his statutory regulator, the Bar Standards Board (“BSB”), brought charges against him for offending a female colleague during a conversation. Feliks was prosecuted, tried in public, fined and reprimanded. His unblemished professional reputation, built over 40 years, was tarnished. He seeks your help in appealing to the High Court, where his public hearing has been listed in the Administrative Court for 21st and 22nd June this year.
This unfortunate tale began in 2019 in the waiting hall at a quiet Sussex County Court. Feliks was in discussion with opposing counsel, a woman. Only one other person – a male barrister – was in earshot.
Feliks objected to the written statement of the (female) legal executive acting for the opponent. Her statement falsely accused Feliks’ (female) instructing solicitor of dishonesty, an attack on a fellow professional that Feliks thought was grossly improper.
Feliks roundly criticised the professionalism of the accuser. At one point he described her as ‘a hysterical woman.’ When his (female) opposite number objected, Feliks tried to explain that he was speaking from long professional experience of the way that such behaviour had become more prevalent.
Feliks’s opponent made it clear she was not interested in hearing him out. She later lodged a complaint against him with the BSB. The complaint was initially dismissed by a (female) official, but later revived at the instigation of a more senior (male) official at the BSB. Feliks only learned of these internal machinations over a year later, because they were disgracefully covered up.
He and his two counsel (one being a woman) are very concerned that this case is one of several recent cases in which this statutory regulator has met the expression of views it dislikes with prosecution and punishment. Others have involved the expression of unpopular views on social media which the BSB now seeks to regulate, even if that involves invading the private lives of barristers. Through such mission-creep we edge ever closer to being the kind of country that we claim to abhor.
The disciplinary tribunal found that Feliks’ behaviour, 2 years earlier in the court waiting area was ‘reprehensible’, ‘sexist and discriminatory’ and ‘seriously offensive’. Details of its judgment were published in the English press and then around the world, unmistakably signalling the UK’s damaging and self-defeating suppression of free expression.
Feliks has a daughter. He is not a misogynist. He is not sexist. Interestingly, the BSB did not charge him with sex discrimination. The case was all about shutting down the right to express views that some (completely unidentified) people might dislike. The statutory regulator seems to think that it may pursue its own authoritarian political agenda, disguised as regulation based on lofty objectives such as ‘the public interest’.
You may agree with Feliks’s comments, or you may feel that he shouldn’t have said what he said, or expressed it differently. The principle at stake, however, concerns the power of regulators and other quangos. Why did comments made in passing by one professional to another result in a long, costly and humiliating adjudication process? Surely, people ought be free to speak candidly to one another without being punished by a Big Brother with different views? When did disagreement become an ‘indictable’ offence? When did walking away from an argument become an insufficient way of expressing disagreement ? Why are we allowing bossy quangos to police minor disagreements between grown-ups ?
Feliks believes that ‘cancel culture’ has no place in society. He believes he is not alone. He sees his fellow-barristers, such as Jon Holbrook, being persecuted for a refusal to stay silent in the face of intolerant dogma.
Feliks is neither ‘privileged’, nor insensitive to the dangers of intolerant dogma. Feliks’ parents were slaves in wartime, became political refugees, and led plain working-class lives in this country. Feliks, who is disabled, is near retirement. He is not a ‘fat-cat’ lawyer and so cannot afford litigation against the BSB without your help. The BSB tries to shut down such appeals by threatening to get huge costs orders against those who have the temerity to complain about oppression. With your help, Feliks can go into battle in the High Court without fearing such an appalling threat.
Marc Beaumont, the leading barrister in the field of professional regulation of barristers, has represented Feliks throughout. Marc and Shivani Jegarajah, a public law specialist, will argue on Feliks’s behalf that enough is enough – it is the role of the High Court to remind quango regulators, that it is not their normal function to tell people what they can and cannot say, by using punishment and ill-informed bad publicity to shut them down.
Feliks’s priority is to raise £60,000 (including VAT) in order to fund his own legal representation and to meet potential liability for the opponent’s fees, in the event that the court does not see fit to clip the wings of the BSB. Feliks has pledged to give any unused funds to the FSU’s war-chest for helping other members stand up for their free speech rights in the courts.