Law or liberty?

When my family and friends ask me what it’s like to live in Guernsey, I tell them that it’s an amazing place. It has great natural beauty and fantastic hospitality, but the best thing is the sense of community and no-nonsense approach to life.

For someone who has relocated from Australia, which is fast becoming as highly regulated and governed as any jurisdiction, rivalled perhaps only by the UK, I find the Guernsey way of life liberating and refreshing.

The above thoughts swirled in my head when I recently read that Guernsey was considering implementing anti-discrimination legislation modelled in part on Australian law.

The stated aim of the legislation is to prevent discrimination on the basis of a multiple of specified grounds, namely disability, age, race, sex, sexual orientation, marital status, gender status and identity, family status or responsibilities, and religion.

At first glance, the motives and purpose for the legislation are honourable, admirable and even unobjectionable. Therein lies the first problem, as such meritorious sentiments make critical analysis of any unintended consequences politically problematic. However, given that anti-discrimination law will impact how Guernsey businesses are run, how its children are educated, how goods and services are consumed and will potentially moderate people’s freedom of speech, an analysis of the cons as well as the pros of the proposed legislation is essential.

The rationale for the proposed legislation is currently being promoted and discussed through a series of community consultation events aimed at promoting and accelerating the equality agenda in Guernsey.

To this end, I’m a total supporter.

I believe the focus should rightly be on education and on raising awareness of residents’ rights and the promotion of equity and equality amongst all. However, I suggest that this can all be achieved without legislation and, in fact, if legislation is needed to address such attitudes, then Guernsey has far deeper issues than can be resolved by courts and lawyers.

As I understand the scheme, people who feel that they have been discriminated against will be able to obtain advice and assistance to resolve their complaint in an informal manner. If the complaint cannot be resolved informally, there will be a mechanism for formal adjudication by a court or tribunal. If the complaint is upheld, there will be various awards and remedies available.

All this comes at a cost and, if Australia is used as an example, carries the risk of dividing the community and facilitating the rise of identity politics as only if you can fit yourself into one or other of the designated groups can you take advantage of the legislation.

The above begs the question, why is this needed in Guernsey and is legislation and litigation the best way to solve such issues in Guernsey?

The stated rationale for the legislation is that most other countries have such legislation, so Guernsey is being ‘left behind’. I’m not convinced by this line of rationale because if that’s the driving force for the legislation, then Guernsey is on a slippery slope of introducing ‘me too’ legislation just for the sake of balancing the legislative books, regardless of cultural and island-specific needs.

The second rationale is based on ‘possible’ scenarios. Examples used are that presently a restaurant can refuse entry to a patron accompanied by a guide dog, or that legal services can be refused to a gay person or that an individual can be sacked because of a medical condition or that a carer can be forced to leave their job because their employer refuses to be flexible with their hours of work.

Personally, I don’t believe that the above examples are being played out in Guernsey, nor do I believe that the people of Guernsey are so bigoted and unreasonable that a broad-based suite of anti-discrimination legislation is warranted to moderate their attitudes and behaviour. Disagreements and misunderstanding are a way of life.

In those instances where they occur, focus should be on finding ways of resolving such conflicts using alternative dispute resolution processes and techniques stopping short of legislation and litigation.

Since the introduction of Australia’s anti-discrimination legislation, thousands of complaints have been filed each year, yet it’s debatable if Australia is a fairer country as a result. If anything, it is as divided as it’s ever been on the back of the rise of identity politics and political correctness. Of significant concern is the increased use of anti-discrimination rights to close down political opponents and freedom of speech, citing hurt feelings and feigned offence.

Does Guernsey need such intrusions and limitations?

Further, the Australian experience is that anti-discrimination legislation has a mixed track record of helping the group(s) it was designed to help and protect. For example, the wage gap between men and women was narrowing until the introduction of sex discrimination legislation, after which it plateaued, and the workforce participation of disabled workers has deteriorated since the introduction of disability discrimination laws.

Guernsey is a great place to live, work and raise a family. It’s great because it hasn’t gone down the path of most mainland jurisdictions where citizens have increasingly looked to government to regulate and oversee just about every aspect of their lives and as a consequence have lost their sense of community and liberty.

My advice to Guernsey is to tread down the anti-discrimination legislative path with caution and reflection. If it is determined that the community can’t find solutions on its own and that legislation is the best way to deal with instances of discrimination, then the law should be drafted narrowly to deal with the specific issues of discrimination identified, but it should also provide for adequate general exemptions to deal with unforeseen and unintended consequences.

My lived experience tells me that if anti-discrimination legislation is introduced in Guernsey, a taxpayer-funded bureaucracy will be required and an industry of legal advisers and consultants will morph into existence. The community consultation that is currently under way, focusing on the positives of the proposed law, is well and good, however what must not be overlooked in the process is consideration of the possible unintended consequences for business and the Guernsey way of life that the introduction of broad-based anti-discrimination law modelled on countries with issues and cultures vastly different to Guernsey would have. This is critical as the benefits of prescriptive anti-discrimination legislation for Guernsey may be a lot less than assumed, yet the unintended consequences in both the short and long term could be significant.

• Dr Stretch Kontelj permanently resides in Guernsey but is originally from Australia of Slovenian heritage. He is a former mayor and councillor of Greater Geelong, a city in Victoria, Australia, of some 250,000 people. He is vice chairman of the Guernsey branch of the Institute of Directors and takes a keen interest in local politics and community affairs.

• @StretchKontelj