Baroness Harman’s independent review of bullying, harassment and sexual harassment at the Bar, published earlier this month, sent ripples across the barrister community for its potential to lead to censorship and the repression of free speech.
Speech should only be a criminal or regulatory matter if a very high bar of offence is crossed. Certainly I don’t think I’ve ever crossed it. Yet, in our culture now, mere disagreement is seen as violence, and not having a prevailing view about issues such as sexuality or transgenderism is seen inherently to be bigoted.
The thing that really worries me from Lady Harman’s new report is recommendation number 24, which reads: “Regulatory enforcement action must be taken against online bullying and harassment,” particularly if it’s motivated by misogyny or racism.
But who is deciding an unknown individual’s motivations for a tweet? Somebody who is upset enough to get the whole apparatus of either the criminal law or a regulatory offence moving? It’s very dangerous.
Of course, there should be fetters on my speech. I’m a member of a regulated profession. That carries with it privilege, and I respect that. However, having a view about Brokeback Mountain does not bring my profession into disrepute. Neither does upsetting people through the lawful exercise of my Article 10 rights [to freedom of expression, according to the European Convention on Human Rights].
I think we all agree the line needs to be drawn somewhere. It’s about where we draw it.
Another facet of the report also caused me deep concern: “Micro aggressions such as… sarcastic remarks… may also meet the threshold of bullying, harassment or sexual harassment” it says.
Barristers are aggressive by nature because we have to be. We’re in an adversarial profession. The problem is when it tips over into unacceptable bullying and harassment, which does happen. I was a victim of it, and my profession did nothing to help me or to stop it. If the Harman report is designed to end that sort of behaviour, then it gets my vote, but I’m worried it’s going to sweep up a lot of casualties in its wake, and one will be Article 10.
For example, you’re not allowed to discuss immigration because then you’re a racist, and you’re not allowed to discuss gender identity because then you’re a transphobe.
In my daily life, I work in public law care proceedings, in cases where local authorities are looking to take children into adoption. It’s getting less rewarding, because resources are being cut and there is less help available for parents and children.
This is why reports and recommendations like Lady Harman’s make me so angry: they risk being performative and a distraction from the bigger, more significant problems in society.
Source: If Harriet Harman strips me of my free speech, I’ll give up my job as a barrister