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 the police 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.
Climate Scepticism 
John,
I am very much in the same place as you regarding the (arguably conflicting) needs to protect freedom of speech and to protect individuals from being harassed. In this case, however, I am rather less concerned about clause 20 of the Employment Rights Bill than I am by some of the provisions of the Online Safety Act 2023 and the absurd idea that it should be policed by Ofcom.
Why am I less concerned by clause 20? Well, because it operates to amend section 40 of the existing Equality Act 2010 by inserting a duty on employers not to allow third parties (which could obviously include pub or restaurant customers, shoppers and a whole manner of business users) to harass his/her/its employees. In the process I can’t see that it extends the existing definition of harassment which (for these purposes) is set out in s26 of the Equality Act 2010. That definition is expressly qualified by relating only to relevant protected characteristics, which are defined as being age; disability; gender reassignment; race; religion or belief; sex; sexual orientation. As long as that list of protected characteristics isn’t surreptitiously extended to protect things that shouldn’t be protected, and so long as the Courts don’t decide to give it an extended meaning, then I can go along with that.
None of which is to say that we don’t live in concerning times so far as free speech is concerned. We seem to have a particularly censorious Prime Minister at the moment. Only this morning I read on the BBC website that while the leader of the opposition has said that the BBC should not broadcast the forthcoming performance by Kneecap at Glastonbury, Starmer has gone one stage further and said that he does not think it’s appropriate for Kneecap to perform at Glastonbury at all. I don’t like Kneecap, I don’t like their views, and I certainly wouldn’t pay to listen to them, but I do defend their right to perform and for others to watch and listen to them. I think the ongoing criminal action against one of their number is absurd, and I think the same of Starmer’s comments about Glastonbury.
These are dangerous times for free speech, and we must remain ever alert to protect it. Lest I be misunderstood, I absolutely agree with your general concerns, and I thank you for bringing this to our attention.
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Mark,
You are quite right to bring up the point that the harassment is presupposed to relate only to protected characteristics, as defined in the Equality Act. That’s why I used the gender critical ‘banter’ as an example and why I conceded that the example given at the end of my article. in which a climate sceptic is thrown out of the pub, was a little tongue-in-cheek — but only to a certain extent.
As I see it, there is a distinction to be made between the law as it is defined, and the law as it is interpreted and implemented in practice (it’s cultural manifestation, if you will). For example, such a distinction may be at the heart of the police penchant for issuing non-crime hate incident sanctions. What I would fear, therefore, is the emergence of a risk averse culture in which restaurant owners, etc. adopt a ‘take no chances’ policy, such that any complaint (or imagined complaint) from staff is automatically met with the ‘reasonable actions’ called for by the law. The line of least resistance may be to adopt a zero tolerance policy regarding customer behaviours (suitably signposted at the door) rather than accept the prospect of never-ending employment tribunals, even though the management might win the majority of them. There could also be a proliferation of the “sorry mate, ‘elf and safety” syndrome – an excuse to impose under the guise of ‘necessary’ legislation. The Tommy Robinson incident has that whiff about it.
Failing that, the presence of the legislation may have an intimidating effect on customers, who self-censor because they do not wish to take chances, particularly in the knowledge of what alcohol can do to inhibitions.
But as you say, the banter ban is not nearly as troubling as the Online Safety Act.
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A couple of days ago, at WUWT:
“UN Calls for “Climate Misinformation” to be Criminalised”
These clowns don’t know what “misinformation” is. In a rational world they could end up banning their own obvious distortions – e.g. that the era of global boiling has arrived.
I would like to think that the denizens of this place could overmatch Carnegie in a battle of who talks more sense about climate change.
On the plus side, an attempt to ban some “climate misinformation” could suffer from the fact that it might well be true, or is at least a reasoned and justified position to hold, and the resulting publicity could be terrible for the censors.
As to Kneecap, I’m with Mark, let them shout. I suspect they had to be prosecuted lest claims of two-tier Kier began to echo around the streets.
As to Robinson, I don’t know what his politics are, but he has a reputation, and the establishment owner probably thought that they didn’t want that reputation in their joint and rubbing off on it.
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Jit,
You’re right about Robinson having a reputation. I have also heard that there is something in the past between Robinson and the wife of the bloke who owns the restaurant chain, and that might explain a thing or two.
The idea of criminalising climate scepticism (or as the powers that be would have it, climate misinformation) is an old one, unfortunately. As is the idea of classing it as a mental illness. Being thrown out of the Queen Vic may the least concerning of our possible fates.
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Many years ago when I was youger I used to socialize regularly in London and if frequently overheard ‘banter’ by drug and drink fueled groups of chaps from shall we say the ‘banking and finance sectors’ was anything to go by the would be no one left at liberty, they would all be banged up guvnor and all this just after work on a friday evening!
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younger!
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John (at 5.06pm) – you make some good points. It’s possible that concerned employers might “over-interpret” the legislation for the sake of their own safety. It’s similarly possible that pub banter might dry up because because people are worried about the consequences in an increasingly censorious society.
As always the issue is one of balance. Nobody should be harassed (whether at work or otherwise). On the other hand, free speech should be permitted unless it seriously oversteps the line. The difficult question is as to where the line is. I’m far from convinced that I trust the current crop of politicians (or indeed the ones who inhabited the last Parliament) to draw the line in the right place.
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Bit O/T but related. See the Belfast band Kneecap have been mentioned in the comments.
when I first heard about them, I thought (and still think), what a provocative name for a NI band.
Victim lives ‘life of mental and physical trauma’ after kneecapping – BBC News
Partial quote – “The term “kneecapping” is used in Northern Ireland when self-appointed vigilantes, often paramilitaries, take the law into their own hands and shoot those they accuse of anti-social behaviour in the knees. The term has been adopted by the Belfast rap trio Kneecap. Mr Barker said the group’s decision to choose that name was distressing to him and he wanted to convey the severity of what he went through.
Kneecap’s management said there were a number of reasons that the band used the name including that it was ironic as the band are talking about things that might have got them ‘kneecapped’ during the Northern Ireland Troubles.”
Seems Mr Barker was not an innocent from further reading.
As John says, sometimes “it’s not funny anymore”.
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Mark,
As always the issue is one of balance.
That sounds like a trite thing to say and yet it is so true. All societies walk the tightrope between excessive state control and irresponsible levels of personal emancipation — and we tend to underestimate how easy it is to lose balance and fall off. To one side there is the dystopia of totalitarianism to fall into, and on the other a society in which freedom descends into chaos. The internet has democratised society in ways that are causing the tightrope walker to lose balance, and the legislative efforts to control narratives are amongst the state’s mechanisms for steadying the ship (to mix my metaphors). That said, the state is not a disembodied entity divorced from the culture of the day. When it seeks to retain control, it does so by achieving a balance that protects society’s current values and accepted truths, including those that dictate how much control is deemed acceptable. Such values do, of course, change over time and they vary from culture to culture.
I should also add that I sense a type of vigilantism emerging in which the mob is taking the lead in policing free speech.
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I think the line should be about inciting violence, not about hurt feelings.
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To be clear, my point is about institutional coercion regarding speech. Amongst private social groupings, “That’s not funny, ” works to set boundaries, effectively curating and limiting expression within the circle.
Old joke: Q: How many feminists does it take to tell a joke? A: Six. One to tell the joke, and five to say: “I don’t see what’s funny about that.”
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“UN expert urges criminalizing fossil fuel disinformation, banning lobbying
Rapporteur calls for defossilization of economies and urgent reparations to avert ‘catastrophic’ rights and climate harms”
https://www.theguardian.com/environment/2025/jun/30/un-expert-urges-criminalizing-fossil-fuel-disinformation-banning-lobbying
A leading UN expert is calling for criminal penalties against those peddling disinformation about the climate crisis and a total ban on fossil fuel industry lobbying and advertising, as part of a radical shake-up to safeguard human rights and curtail planetary catastrophe.
Elisa Morgera, the UN special rapporteur on human rights and climate change who presents her damning new report to the general assembly in Geneva on Monday, argues that the US, UK, Canada, Australia and other wealthy fossil fuel nations are legally obliged under international law to fully phase out oil, gas and coal by 2030 – and compensate communities for harms caused.
Fracking, oil sands and gas flaring should be banned, as should fossil fuel exploration, subsidies, investments and false tech solutions that will lock in future generations to polluting and increasingly costly oil, gas and coal…..
Interesting, worrying and depressing, in equal measure. Be careful what you wish for. I call out claims that there is a climate crisis as misinformation.
I call out claims that renewables are “nine times cheaper” than fossil fuels as misinformation.
I call out claims of temperature records based on WMO category 3, 4 and 5 weather stations as misinformation.
I call out claims of temperature records that don’t take into account the urban heat island effect as misinformation.
I call out the claim that one third of Pakistan was under water as misinformation.
I call out claims that the UK government is tackling (or indeed can tackle) climate change (or the non-existent climate crisis ) as misinformation.
And much, much more in a similar vein.
Unlike Elisa Morgera, I don’t think that she and people like her should face criminal penalties. I think the way to target misinformation is to have an intelligent debate, pointing out why it’s inaccurate, not to ban it and to criminalise people making those claims. Anyone seeking to clamp down on debate and seeking to ban free speech is on the wrong side of history.
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The clown is very apt. Ofcommie are currently trying to fine US companies for breach of the UK Online Safety Act, after Herr Starmer assured Trump that US companies would *of course* not be subject to UK online safety rules, i.e. censorship. How’s that going? Not too well, apparently:
https://reclaimthenet.org/uk-ofcom-claims-first-amendment-cant-shield-americans
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“Starmer to force social media giants to prioritise BBC and other public service content
Labour plans to give public service broadcasters priority in news feeds to fight disinformation”
https://archive.ph/6OLV9#selection-2163.4-2167.99
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What a joke & not funny at the same time. Liked this from the article –
“Lord Young of Acton, the Tory peer who founded the Free Speech Union, said: “The Prime Minister has apparently decided that censoring social media should be his legacy, which is a bit weird for a human rights lawyer.
“My theory is he wants to return to practising law and hopes to be hired by Elon Musk as an expert in social media regulation.”
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“The Government has grown too comfortable with censorship
Starmer’s raft of online ‘safety’ policies stand to make the UK’s internet one of the most controlled in the democratic world”
https://archive.ph/wPw0K
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