From Wolf Whistles to debates at Speakers Corner – Why we must fight against the ‘right not to be offended’

In the year 2000, during an interview for a job I was asked the question “What reasons are there for arguing against the implementation of the Human Rights Act?” I assume this was a question intended to be a curve ball to make candidates think on their feet as at that time the Human Rights Act was the Golden Child of New Labour. My answer was simple.

“It will water down the European Convention on Human Rights, and will place non lawyers in the everyday position of interpreting the basic human rights enshrined in the European Convention on Human Rights, which in turn will cause all sorts of weird and wonderful rights to be created while the basic rights will slowly disappear.”

Sadly, nearly 20 years later I am seeing exactly that.

The European Court of Human Rights was set up to interpret and apply the European Convention on Human Rights, it was the last place to bring a challenge to State actions which were alleged to have breached the European Convention on Human Rights. Very few cases made it to this final stage, and the cases which were adjudicated upon were those which had particular significance (in the same vein as the Supreme Court of the USA), and the judges were selected for the expertise and experience of dealing with International and human rights cases. With the implementation of the Human Rights Act 1998, we are now in the position where the local police force, council or magistrates court are making their own determination on all sorts of issues which are banded around as being ‘human rights.

I regularly sit in magistrates courts and hear the Magistrates convict a defendant for something they have said or written, with the Magistrates telling the defendant that their ‘victim’ has the “right not to be offended.” Well No, actually there is no ‘right not to be offended’ nor is there a ‘right not to be upset’ or a ‘right not to have someone voice views which are different to yours’. Likewise, there is a right not to be discriminated against because of your sex or sexual orientation, but there is no right to be given special treatment, such as two work ID cards so that a person can choose every day whether they are identifying as male or female that day. However, all of these seem to have been introduced through Council Officials, police officers and Magistrates Courts. Police arresting a person for postings on social media which have upset another, is now not uncommon, and there is now a suggestion that wolf whistling is a hate crime. But what is not considered in all of this is that the person making the comment or wolf whistling, is exercising their right to freedom of expression. A right which has genuinely existed since the ECHR was introduced in 1950, and which should only be restricted as is necessary in a democratic environment.

The Royal Parks website describes Speakers Corner at Hyde Park as a traditional site for public speeches and debates. In 1872, legislation gave people the right to meet and speak freely in Hyde Park. Yet just this weekend UK Border Force detained 2 people from entering the country on the basis that one of them would debate their right wing views at Speakers Corner, and the other was to be interviewed by someone who the Government has determined is a dangerous right wing hate speech extremist (and whose website the Government can’t manipulate and control).

What was actually meant by UK Border Force was that your views are not what the mainstream Government and liberal police forces want to hear at the moment, and hence we are not going to permit you to exercise your right to freedom of expression. This is a very slippery path for public authorities to be treading. While I do not personally agree with right wing views on most matters, I do believe very strongly in the right to freedom of expression, to hold views which are not populist and which do challenge the Government and Public Authorities. I have worked in countries where people are imprisoned and punished for expressing views which are not the same as the Government, where books are banned and burned. With the loss of the right to freedom of expression comes the loss of lots of other rights – if no one can complain about rights being taken away, what is to prevent other rights being taken away?

It is about time we went back to thinking about the basic human rights, which are there to protect us from State control, not being complicit in creating new rights which have the effect of placing us under more Government and Public Authority control than ever before.

About gurdena

Social Justice Barrister, interested in all things contentious & anything criminal justice related including prisoners and complaints against the police. Specialising in criminal law - mainly sex, violence, and football fans (not necessarily all 3 at the same time!). Represents people facing death penalty in the USA. Associate Member at Drystone Chambers

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