17 December 2010
John Wadham, Group Director, Legal, at the Commission, said:
“Today’s judgment makes no difference to the substance of our action against the BNP. In March this year, the County Court ruled that the BNP’s constitution was racially discriminatory. That ruling remains in place and has now, finally, been obeyed by the BNP.
“Mr Griffin failed to properly implement that judgment until we took these proceedings in the High Court. He had sought to have the County Court order overturned in the High Court but after realising this was futile he withdrew the application before the hearing and carried out the actions required by the order.
“When the Commission began proceedings against the BNP in June last year the party’s constitution was plainly illegal. We asked that they amend it at the time. Had they done so we could have avoided court proceedings. Eighteen months and seven court hearings later Mr Griffin has finally amended the constitution to bring it in line with what the Commission had originally requested.
“We will continue to monitor any changes to the BNP’s constitution to ensure membership is made genuinely accessible. If we consider that it is not we will decide what regulatory action may again be necessary. "
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The Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission. It is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights. The Commission enforces equality legislation on age, disability, gender, race, religion or belief, sexual orientation or transgender status, and encourages compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.
In June 2009, the Commission sent the BNP a letter before action stating concerns about their 11th constitution and membership criteria. The Commission believed the criteria restricted membership to those within what the BNP regarded as particular "ethnic groups" and those whose skin colour is white. This exclusion is contrary to the Race Relations Act 1976.
The BNP indicated they were unwilling to amend the constitution to bring it in line with the law so the Commission issued County Court proceedings against Nick Griffin, Tanya Lumby and Simon Darby.
The case came before the County Court on 15 October 2009. At the hearing, the BNP agreed to revise its constitution so it did not discriminate on any "protected characteristic" - for example on the grounds of race, ethnic or religious status - within three months. The Court ordered that Nick Griffin should close the membership of the Party to all new membership applications until the new constitution came into effect. The matter was adjourned to allow time to make the necessary changes.
At the adjourned County Court hearing on 28 January 2010, Nick Griffin agreed to change the constitution of the BNP to allow non white members.
On 14 February 2010, the BNP voted on a new 12th constitution which stated that membership of the party was open to members of any descent or origin. However, it introduced new criteria which the Commission believed would make prospective members sign up to certain principles and statements that would require them to deny their ethnic and cultural identities. These included clauses which indicated that prospective members must be against mixed race relationships and support the relocation of ethnic minorities either abroad or to different parts of the UK. Prospective members were also forced to submit to a two hour home visit by two party members as part of their application process.
The case came back before the County Court on 12 March 2010 for the court to rule on whether the revised constitution remained discriminatory and was consequently unlawful. The Judge upheld the Commission's view. He found that, while it is not unlawful to hold discriminatory views, it is unlawful for such principles to be used to control entry to a political party. Accordingly, the BNP would be acting unlawfully if they operated membership criteria as set out in their 12th constitution.
The Judge ordered that the BNP could not reopen its membership until it had removed the offending clauses from its constitution and had notified its members of this by posting a copy of the judgment and order to all members and posting a copy on the party website.
On 9 April 2010, a new constitution was published on the BNP's website. The offending clauses were reinstated as conditions of attending meetings or having the right to vote.
As the County Court order had not been complied with, the Commission applied to the court for enforcement of the order. This matter was dealt with on 25 June 2010 when the judge decided to transfer the case to the High Court because if the BNP were in breach of the order, the most appropriate remedy would be sequestration of assets which can only be ordered by the High Court.
Mr Griffin then issued an application to strike out the County Court order of 12 March 2010 and suspended the offending clauses from the constitution.
By the time the matter came before the High Court on 8 November 2010 the BNP had amended the constitution. The High Court had to deal with the issue of whether the County Court order concerned only the terms on which people are admitted to membership of the BNP rather than the rights that may be exercised as members once they have been admitted.
The Commission submitted that the revised constitution failed to comply with the order because the discriminatory conditions on which people were formerly admitted to membership had been imposed on the exercise of rights as party members, in particular the right to attend meetings and vote.
The High Court decided that the order had to be read as being limited to the terms on which people are admitted to membership. They said it would be unfair to hold the BNP in contempt on the basis that, on one of two possible meanings, terms of the injunction had been breached. Because the BNP had already changed its constitution to adhere to this, the only matter outstanding is what principles voting members have to adhere to. These provisions are currently suspended in the BNP’s constitution and the Commission hopes they will never be implemented.
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