Causing offence should not be made an offence

This week the very same deputy will attempt to railroad through the Assembly a raft of ‘anti-discrimination’ legislation so chock full of devilish detail that it is hard to know where to begin.

Guernsey’s business community has correctly identified many of the shortcomings of this giant hammer of a law to crack a tiny nut of a problem, but the one that fills me with most dread is the plan to make it illegal in future to hurt someone’s feelings.

If this is allowed to go through, transgressors will be hauled before a ‘tribunal’ (think of it as a woke kangaroo court) that will have the power to impose fines of up to £10,000. Yes £10,000 for the non-crime of inflicting ‘injury to feelings’.

Of course, unlike actual physical injuries, injuries to feelings are entirely subjective and virtually impossible to prove, making it the job of the tribunal to get into the mind of the victim to decide what level of mental hurt has been caused and how much compensation must be awarded.

It is crystal clear that the proposal to compensate for injured feelings will be massively open to abuse, while the offence of causing offence, once enshrined in Guernsey law, will result in a culture of victim-hood and grievance becoming embedded in our island society.

Even more concerning is that Deputy Roffey and his Employment & Social Security committee have said that this week’s proposals are merely the start.

Further anti-discrimination legislation covering age and sex and gender is on the way, with the prospect of yet more fines for heinous new offences that will no doubt include, as examples, using the wrong pronouns and ‘mis-gendering’.

I note one deputy has placed an amendment to reduce the maximum fine for hurting someone’s feelings to £5,000, but this does not go far enough.

If we wish to avoid making causing offence an actual offence, this part of the proposed legislation must be struck out entirely.

In the words of that indomitable political warhorse Ann Widdecombe, who has been called quite a few things in her time: ‘Nobody has the right to live their lives being protected from offence, or from insult, or from hurt feelings. It is an occupational hazard of living in society.’

M J TOLCHER

La Grande Maison de Bordeaux

Vale

Editor’s note: Deputy Peter Roffey, president of the Committee for Employment & Social Security, responds:

The suggestion that people will be able to make claims just because someone has hurt their feelings is one of several myths our committee regularly hears. It is simply not true. A person cannot make a successful discrimination complaint simply because their feelings have been hurt – they need to be able to show that they’ve been treated less favourably than another person in a similar situation because of a protected ground or been harassed or victimised. If the complaint is upheld, then compensation could be awarded for the upset, distress or anxiety that a person might have suffered as a result of discrimination.

Awards for ‘injury to feeling’ vary depending on the seriousness of the case. This is a normal part of the awards structure in discrimination legislation elsewhere.

Perhaps the terminology ‘injury to feelings’ can be misleading but it is the standard legal term. In reality this can amount to damage to a person’s mental health or the creation of stress to a point where they are unable to work for a period of time. It would be perverse if the tribunal (chaired by a legally-trained individual) were not able to adjust the award to reflect such aggravated circumstances.

Your correspondent also suggests that Guernsey’s business community has identified ‘shortcomings’ in the new legislation. The reality is that we have been pleased to have received support so far from the business groups that make up the G4. It is certainly true that they did have some detailed concerns over the first iteration of the proposals some years ago but those have been significantly reformed as a result of the wide-scale consultation at the time. That was the point of the exercise.

Since those amendments have been included the G4 has urged States members to press on with the legislation pointing out both that it strikes a reasonable balance and that not to do so risks significant damage to Guernsey’s reputation. ESS is very grateful for the support of Guernsey’s leading employer organisations over this matter.