Some while ago, whilst working on a newly installed traffic control system for the Blackwall Tunnel, I came face to face with the institutionalised racism that existed within the Metropolitan Police. I was working in the control room performing tests on the system, whilst two police officers were chatting between themselves at the control panel. At that point a young black man walked into the room to fix some apparatus. He was obviously a civilian employed by the Met to provide maintenance cover. Quickly the police officers turned their attention to the young man, mocking his appearance. “Yes”, quipped one officer to the other, “since when have we been employing gorillas to carry spanners’.

To say I was shocked would be an understatement.  And my shock must have been all too apparent, since the same officer then turned to me and said, “Don’t worry, he knows us well. He’s alright with it. He knows it’s only banter”. I only had to look the gentleman in the eyes to see that he wasn’t in the least bit alright with it. He had simply accepted it as something he was powerless to correct; as did I on that day, to my everlasting shame.

Banter is generally a good thing since it encourages bonding and cohesion within an in-group. However, when unchecked, it can be used as an excuse to exchange toxic attitudes within — what the participants understand to be — a safe space. Consequently, racism, misogyny, homophobia and many other forms of intolerance can be breezily passed off as ‘mere banter’. The damage caused to the mental health of individuals who are exposed to it can only be guessed at. And when it happens in the workplace there is certainly an argument to treat the problem as an occupational health and safety issue.

So you would think that I am very welcoming of the recently introduced Employment Rights Bill, with its controversial Clause 20 — colloquially known as the ‘banter ban’. But I’m not. In fact I am far from happy.

The problem is that Clause 20, in its current form, has every chance of following a recently established pattern, in which legislation that has the ostensible and legitimate purpose of ensuring the health and safety of the individual becomes an instrument for supressing ‘unacceptable’ narratives. Take, for example, the Online Safety Act 2023.

When the Act was first introduced as a Bill, the UK government of the day heralded it as one that delivers its “manifesto commitment to make the UK the safest place in the world to be online while defending free expression”. Its safeguards were deemed necessary primarily to protect children from harm such as exposure to pornography, online grooming, suicide sites and sites likely to radicalise. As such, the safeguards were directed at removing illegal or harmful content, and it would be difficult to object to any of this. Except that the talk of ‘defending free expression’ starts to sound very hollow in the light of some of the lobbying that took place during the Act’s development. For example, take what the Carnegie UK Trust had to say:

As we set out below in relation to climate change disinformation, we strongly believe that the Online Safety Bill needs to be both simplified and strengthened if it is to be effective, with its scope widened by a new definition of harm that will capture not just harms to individuals but to society as a whole. Climate change disinformation is one such societal harm that, at present, would not be captured by the scope of the Bill. We set out below how we think the Government should rectify this and hope that this proposal, and the analysis that informs it, is helpful to the Committee as they continue their deliberations on this important topic.

This idea that the Bill should extend towards covering the concept of misinformation or disinformation presupposed harmful to society was also embraced by the then Minister for Technology and the Digital Economy, Paul Scully MP, when he told the BBC that the government’s proposed Online Safety Bill would guarantee that the responsibility of social media platforms to tackle disinformation was ‘taken seriously’.

It is no wonder, therefore, that Article 19, an international human rights organization, stated that they saw the Online Safety Act 2023 as a potential threat to human rights, describing it as an “extremely complex and incoherent piece of legislation”. Furthermore, the Open Rights Group described the then Online Safety Bill as a “censor’s charter”. It is indeed worrying to know that an unelected body, Ofcom, is empowered by the act to determine what constitutes ‘harmful misinformation’ in relationship to issues as complex and controversial as the safety and effectiveness of vaccines approved for emergency use, or on lockdown strategies, or the rights and wrongs of Net Zero. Whether the Act’s provisions do in fact ‘defend free expression’ remains to be seen as the legislation is still to be bedded in, but the omens are not good.

Not good, if only for the fact that this introduction of safety legislation, that has morphed into an instrument for suppressing ‘misinformation’, is happening in parallel with the proliferation of police action taken against those deemed guilty of ‘non-crime hate incidents’. Once again, this is a case of well-intended safeguards being introduced and then having extended consequences. The idea of the non-crime hate incident was conceived in the wake of the brutal murder of Stephen Lawrence. Subsequent enquiries picked up on the fact that the perpetrators had been exchanging messages that were indicative of their murderous intent, but the police did not intervene because the dialogues did not meet the threshold of criminality. Had they done so, a very serious crime could have been prevented. Now, however, the police have been granted that prerogative to intervene, using a logic that has been dubbed ‘hurty words today but genocide tomorrow’. Free speech becomes very difficult when merely hurtful or inconsiderate remarks can risk a knock on the door, followed by the delivery of a non-crime sanction that nevertheless goes on your criminal record. Here again, a measure that was introduced with the best of intentions has become a weapon that can be (and many say is) extensively abused in pursuing anyone whose views threaten the sensibilities of society, or indeed threaten anyone feeling offended enough to contact the police.

So against this backdrop of an increasingly litigious and censorious society we now have the Employment Rights Bill; a Bill that will place a burden upon restaurant and bar owners to safeguard their staff against any customer ‘banter’ that amounts to harassment. The problem is that, innocuous though the Bill may seem, the definition it uses regarding what might constitute ‘harassment’ is just too imprecise to ensure the necessary focus. After all, we live in a time when a young waitress can claim distress at having to overhear a discussion that is gender critical. To some, such distress may seem unwarranted, but it would nevertheless be genuinely felt by those concerned and therefore fall within the remit of the Bill. The same could be said for a range of political, religious and ethical subjects that, when discussed in a public arena, could cause distress to an eavesdropping generation that has been taught (particularly in university) that they have a right not to be exposed to views they find distasteful. It is most appropriate, therefore, that Lord Toby Young, Founder and General Secretary of the Free Speech Union, should be lobbying for amendments in order to limit the scope of the Bill’s application.

Is the scale of the problem of third party harassment overstated? Yes, in all probability it is. But are the fears for free speech invoked by the Bill also overstated? Well not if the recent eviction of Stephen Yaxley-Lennon (aka Tommy Robinson) from a London restaurant is anything to go by. He wasn’t evicted because he used racist banter directed at one of the waiters. Had he done so, I’d like to think I am mature enough nowadays to have assisted in his eviction. But no, in this instance there wasn’t even any banter involved. It was his mere presence that was deemed sufficiently disquieting for the restaurant manager to act on his staff’s behalf. On the face of it, a person who represented political views deemed harmful by the restaurant management was being evicted on the pretext of exercising a duty of care.

God knows what would have happened if Robinson had started talking loudly about climate change and taking a rise out of the Carnegie UK Trust. I jest, of course, but this really isn’t funny anymore. There are views that are espoused on this website that we may feel are perfectly reasonable and well-argued, but others consider shameful and harmful to society. I would hate to find myself in a world where I would not feel safe meeting one of my fellow bloggers in the pub to openly discuss sincerely held misgivings, without incurring a life-time ban as a result of the sensitivities of a wannabe Greta who wasn’t even supposed to be in the conversation.