Speech Tyranny in the U.K.?

By Frederick Attenborough

Wednesday, October 30, 2024

 

Pub landlords will be turned into “banter police,” venues will be less likely to book edgy performers, and universities will be gifted a lawful reason to rescind invitations to controversial guest speakers under reforms to workers’ rights that form part of the newly elected U.K. Labour government’s ongoing war on free speech.

 

To be sure, Prime Minister Keir Starmer has already done some shocking things to attack free speech — encouraging the police to record more Orwellian “non-crime hate incidents” against people who upset members of supposedly “marginalized” groups, for instance, as well as stopping commencement of a law designed to tackle cancel culture at universities, and developing a “conversion practices” ban that will punish parents, doctors, and teachers who dissent from gender ideology.

 

Then there are the risks coming down the track that include the criminalization of “Islamophobia,” a Race Equality Act that will embed critical race theory in workplaces, and an attempt to force newspapers and magazines to bend the knee to a state-controlled press regulator.

 

For all that, however, the Labour government’s draft Employment Rights Bill is by far the biggest threat we’ve seen so far.

 

Provisions contained in this rather bland-sounding legislation mean the Equality Act 2010 will be updated to make employers liable for staff being offended by third parties, such as customers or members of the public.

 

Similar rights were due to come into law last year after ministers backed a Private Member’s Bill brought forward by Liberal Democrat MP Wera Hobhouse. Clause 1 of the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 would have created new liabilities for employers in cases of third-party harassment of their staff, unless the employer had taken “all reasonable steps” to prevent such harassment.

 

However, thanks in part to the campaigning work of the Free Speech Union (FSU), two amendments were ultimately accepted during committee stage, which significantly reduced the scope of the bill by removing Clause 1 entirely.

 

But now these proposals have been resurrected thanks to our full-throttle woke Labour Government.

 

Be in no doubt that this snowflakes’ charter will have disastrous consequences for freedom of speech, impose huge compliance costs on Britain’s one and a half million businesses, further the encroachment into our lives of a philosophy of mindless compliance, and bring what can only be described as a Starmer-esque joylessness to areas where we were once able to enjoy life.

 

It’s true that the Equality Act 2010 already makes employers liable for breaches of the Equality Act by employees. But the leap made in Labour’s Employment Rights Bill is to apply this regime to harassment by third parties — employers will be vicariously liable for harassment that their employees suffer at the hands of third parties (i.e., members of the public) in the course of employment.

 

If we were just talking about sexual harassment, that would be one thing. But this bill actually seeks to extend third-party liability to every type of “unwanted conduct” already prohibited by the Equality Act, including overheard conversations.

 

In other words, under this legislation employers will have a duty to protect their workers from overhearing “upsetting” remarks made not only by their colleagues, but by members of the public as well.

 

Across the retail, hospitality, entertainment, and academic sectors, businesses will have a legitimate legal interest in policing what members of the public say — what we now think of as casual and fundamentally private speech will be governed by formal codes of conduct and scrutinized for its potential legal consequences.

 

This is an unacceptable bid to regulate the interactions of day-to-day life.

 

Under the Equality Act, employers had a defense against a claim of third-party harassment if they could show they had taken “such steps as would have been reasonably practicable” to prevent the harassment. However, under Labour’s bill this defense only applies if the employer can show it has taken “all reasonable steps” to prevent the breach — a higher threshold that will encourage businesses to err on the side of caution in regulating what their customers say and do while on their premises.

 

Setting aside the chilling effect this will have on free speech, there are the eye-watering compliance costs to consider.

 

Across vast swathes of the retail and hospitality sectors, possible mechanisms for controlling customers’ conduct — and thereby reducing liability risk — will likely include prominent customer codes of conduct with specific and onerous restrictions on how customers should address members of staff, with any customers assessed as posing a “harassment” risk to staff being banned and placed on a blacklist.

 

What sort of impact is this likely to have on British pubs, for instance, many of which are already struggling to survive?

 

According to the chief executive of UKHospitality, Kate Nicholls, staff in restaurants, bars, pubs, and hotels are working in a “social environment” where “there are jokes and people are boisterous.” She said that while everyone wants to make sure their staff are protected, “we don’t want to be policing our customers’ behavior.”

 

But of course under this new legislation, it’s possible that every pub in England and Wales will need to employ “banter cops” tasked with eavesdropping on customers’ conversations and barring anyone who tells an inappropriate joke.

 

The fact that we’re even having these conversations over in the U.K. tells you everything you need to know about our government’s censorial approach to forms of speech that dissent from prevailing orthodoxy.

 

And what will become of book launches? Would a large chain like Waterstones, for example, risk an in-store book signing by J. K. Rowling, Lionel Shriver, or Riley Gaines on the off-chance that one of the author’s fans might be wearing a T-shirt that says, “Woman = Adult Human Female,” knowing that an employee could sue for hurt feelings — real or vexatious?

 

At the costlier end of the hospitality sector where parties agree to written terms — for instance, the provision of conference venues — employers are likely to reduce the risk of employees complaining of harassment by attendees by requiring guest organizations to warrant or undertake not to harass employees, and to indemnify the host for any losses it suffers as a result of employees claiming third-party harassment.

 

The creation of this new risk under Labour’s Employment Rights Bill, and its transfer to third parties, is likely to have a disproportionate effect on groups in our society that hold dissenting views, the expression of which can easily be misrepresented by opponents as “harassment” — Christian groups, for instance, and women who believe in the reality of biological sex.

 

Exercise of the freedoms of association and speech by these groups will likely become disproportionately risky and expensive.

 

The impact on academia will be particularly egregious.

 

Under the Equality Act in its current form, students and visiting speakers are third parties, and universities therefore do not have a legal duty to protect other students and staff members from “harassment” by them.

 

While it is well known that in practice U.K. universities regularly over-apply the Equality Act, the law can nevertheless be correctly applied when campaign groups like the FSU initiate legal challenges.

 

However, if the Equality Act is reformed in the way proposed, this defense will no longer be available to those who want to protect free speech on campus, since universities would legitimately be able to claim they have a lawful reason to rescind an invitation to, say, a visiting speaker whose views an activist employee regards as “hateful” or “transphobic.”

 

Given the culture of risk-aversion and defensiveness at U.K. universities, Labour’s Employment Rights Bill as written would regularly result in universities obstructing or canceling any speaking engagement that might potentially result in an employee claiming that the speaker’s appearance on campus and their expression of certain contentious views constituted harassment under the Equality Act.

 

Put another way, the effect would be to legitimize and give force of law to some of the most egregious interferences with academic free speech.