Birmingham City Council v Afsar & Ors [2019] EWHC 3217 (QB) was a claim by the Council for injunctions to restrict street protests about Anderton Park Infant and Junior School and to prohibit online abuse of teachers at that school. The majority of the children at the school were of British Pakistani heritage, though there was also a group of Romanian children. The claim arose from objections raised to the school’s teaching, “or what has been said to be its teaching”, of LGBT issues:

“In broad terms, the question for decision is what if any restrictions should be placed on what can be done and said by parents and others who wish to criticise the School’s behaviour in relation to the teaching of LGBT issues” [1].

From about mid-March 2019, there had been frequent protests over the issue and abusive messages had been posted on social media and online [2].

The issues were summarised by Warby J as follows:

“(1) Is the Council’s claim in accordance with the law; or are the defendants right to submit that the legislation relied on cannot lawfully be used as the basis for injunctions of the kinds that are sought (‘the Construction Issues’)?

(2) Does the Council’s claim pursue one or more legitimate aims; or does the relevant teaching and/or the School’s conduct in respect of it, amount to unlawful discrimination on grounds of ethnicity and/or religion, contrary to the EA, against which it is legitimate to protest, so that it would be wrong to grant any such injunctions (‘the Discrimination Issues’)?

(3) If the claim is in accordance with the law and pursues legitimate aims, is it in all the circumstances, having due regard to all the rights engaged, necessary in a democratic society to grant injunctions to restrain protest or criticism that

a) causes harassment, alarm or distress; or

b) causes public nuisance or obstructs the highway; or

c) involves the abuse of teaching staff on social media (‘the Necessity Issue’)?

(4) If any such injunction would in principle be lawful, necessary and proportionate,

a) can an order be framed which is clear, and not excessive (‘the Form Issues’)? If so,

b) against which (if any) of the five defendants could the court properly grant one (‘the Liability Issues’)?[12]

The main issues of fact are (i) what teaching of LGBT issues has in fact been delivered or is to be delivered by the School? And (ii) to what extent are the defendants responsible for the street protests, and any protest or abuse of teachers, so far? [13]”

The case engaged a series of Convention rights: respect for private and family life (Article 8(1)), freedom of thought, conscience and religion (Article 9(1)), freedom of expression (Article 10(1)), and peaceful assembly and freedom of association (Article 11(1)), together with A2P1, “which prohibits the denial of education to any person, and requires the state, in any functions which it assumes in relation to education and teaching, to respect the right of parents to ensure that such education and teaching is in conformity with their religious convictions” [23].

He concluded as follows:

• The legislation relied on by the Council permitted it to seek, and empowered the Court to grant, injunctions of the kind claimed in the action [21(1)].
• The claim pursued the legitimate aims of preventing disorder and protecting the reputations and rights of others and injunctions in pursuit of those aims would not be contrary to the Equality Act 2010, which did not apply to the pursuit of claims for anti-social behaviour, public nuisance, or obstruction of the highway. Alternatively, the conduct complained of by the defendants related to the content of the curriculum, which was outside the scope of the Equality Act. Accordingly, injunctions of the kinds sought would not amount to, or serve to enforce, unlawful discrimination [21(2)].
• Further, “I am not persuaded, in any event, that there has been such discrimination. The teaching has been misunderstood and misinterpreted by the defendants, and misrepresented, sometimes grossly misrepresented, in the course of the protests. The matters that have actually been taught are limited, and lawful” [21(2)].
• The Council had not sought restrictions on the content of the protestors’ expression, but on the way the protestors expressed themselves. Some such restrictions, in respect of the street protests, were necessary in a democratic society and were proportionate to the legitimate aims pursued. [21(3)].
• The evidence did not, however, demonstrate a pressing social need to impose restrictions on what was said on social media. [21(3)]

Therefore:

“… There is a sufficient evidential basis for the grant of final injunctions against each of the first three defendants. Mr Allman [who had applied to be joined to the proceedings with a view to raising freedom of expression arguments in opposition to those aspects of the injunctions that restricted statements on social media [9]] was never a target of any restriction on street protest. As for Persons Unknown, it is legitimate to grant permanent injunctions against those individuals, albeit their identities are unknown, who have been served with, and have thus had the opportunity to take part in the proceedings. The description of Persons Unknown will need to be adjusted to correspond with this group [21(4)].

In the light of these conclusions, I will grant injunctions against the first three defendants and Persons Unknown. I will not continue the injunction restraining abusive statements on social media, and there will be no injunction against Mr Allman, who has succeeded in resisting the imposition in these proceedings of any further restriction on his freedom of speech” [22].

There is a more discursive report of the case in The Guardian, here.

[With thanks to John Allman for drawing the case to my attention.]