The Coronavirus continues to create chaos – legally speaking.
The latest casualty is the Scottish Government’s promised review of the Gender Recognition Act 2004. This exercise will now be postponed for the foreseeable future.
On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004.
This exercise was always dogged by a lack of clarity on the Government’s part. Shirley-Anne Sommerville MSP, the Government Minister who had responsibility for this issue had publicly admitted that there was still a need to build a “maximum consensus” before things become clearer. Code for sorting out divisions over the issue within the ranks of the Scottish National Party.
A link to information about the proposed Bill can be found below:
In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.
Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.
Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment. The Equality Act 2010, of course, also bolsters legal protection for transgender people.
The Scottish Government’s proposed Gender Recognition Bill
The proposed Bill was controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:
Under the Scottish Government’s proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.
Under the proposed legislation, an individual wishing to undergo gender reassignment would have to have met the following criteria:
A statutory declaration to the effect that they have decided to change gender or sex;
The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).
Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government’s approach to transgender rights generally.
A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:
A famous saying about freedom of speech is often (rightly or wrongly) attributed to the eighteenth century French philosopher, Voltaire (François-Marie Aroue):
‘I disapprove of what you say, but will defend to the death your right to say it.’
Voltaire’s remark is, however, not without its problems. Freedom of speech is a contested concept. There’s no such thing as the right (in law) to say anything you like. The European Convention on Human Rights does, of course, recognise the right to freedom of expression in terms of Article 10, but European countries that are signatories to the Convention can restrict this right – quite legitimately.
Recently, in 2019, the European Court of Human Rights made it very clear that Holocaust denial is not a legitimate expression of free speech (see Pastörs v Germany ECHR 331 (2019)).
That said, the ability by signatory countries to restrict Article 10 rights are subject to very rigorous safeguards:
it must be prescribed by or in accordance with the law;
it must be necessary in a democratic society;
it is in pursuit of one or more legitimate aims specified in the relevant Article [of the Convention];
it must be proportionate.
Even in the United States of America, where lots of unpalatable things are tolerated under the free speech provisions of the First Amendment to the Constitution, there are limits (see the Miller Test formulated by the US Supreme Court in Miller v California 413 US 15 (1973)).
Our very own Miller case
In the various legal jurisdictions of the United Kingdom, there is also such a thing as hate speech (a criminal offence). No one is pretending that freedom of speech is an area of the law which is clear cut and unambiguous. It can be minefield and deciding what is legitimate (but perhaps disagreeable or offensive) expressions of free speech from hate speech can be extremely problematic.
We have just been reminded of this fact by a case which has just been decided by the English High Court.
Harry Miller, who is a former Police officer himself, was subject to Police scrutiny because he had posted a number of Tweets about proposed reforms to the Gender Recognition Act 2004. Let us just say that Mr Miller is clearly not in favour of changes to the legislation which would liberalise this area of the law e.g. by permitting individuals to decide their chosen gender by way of self-identification.
Someone complained about Mr Miller’s Tweets and the Police visited him at his work-place to discuss the matter. He was issued with a warning that his remarks could constitute a hate speech incident, but significantly the officers stated that no crime had been committed. This warning was issued to Miller in terms of the Hate Crime Operational Guidance 2014 (HCOG) issued by the College of Policing.
Mr Miller was not prepared to let this matter rest as he was strongly of the opinion that his right to freedom of expression had been violated by the actions of the Police.
He appealed to Humberside Police’s Appeals Body, but the appeal was rejected in June 2019. Mr Miller then commenced an action for judicial review of the actions of the Police.
Mr Justice Knowles sitting in the English High Court agreed with Mr Miller (see Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin)). It is perhaps highly significant that Knowles J prefaced his ruling with a reference to the unpublished introduction to George Orwell’s celebrated novel, Animal Farm:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
His Honour went on to highlight the remarks of Lord Justice Sedley in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having …”
It was also noted that Lord Bingham in Rv Shayler [2003] 1 AC 247 had stated:
“The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated …”.
A subtle judgement?
It is important to understand that the judgement issued by Knowles J is one of considerable subtlety and it is not giving the green light to people to say what they want – even if this would cause offence.
There are still limits to freedom of speech and expression. Critically, Knowles J rejected Mr Miller’s very broad challenge that his human rights in terms of Article 10 of the European Convention had been violated merely because the Police had recorded and classified the matter as a non hate crime incident.
Such measures are necessary in a democratic society (and supported by a wealth of evidence) because, amongst other things, they can:
provide evidence of a person’s motivation for subsequent hate crimes;
provide context to what divides the cohesion of communities when hate incidents take place and how the Police can deal with these matters more effectively; and
prevent escalation of crime particularly with school children who might be aware of the seriousness and consequences of committing hate incidents, recording of such behaviour can be a very effective educational tool.
Knowles J found in favour of Mr Miller on the basis of his narrower challenge to the Police actions. This part of Miller’s legal action could be summed up in the following terms:
“He [Miller] contends that the combination of the recording of his tweets as a non-crime hate incident under HCOG; PC Gul going to his workplace to speak to him about them; their subsequent conversation in which, at a minimum, PC Gul warned him of the risk of a criminal prosecution if he continued to tweet; and the Claimant’s subsequent dealings with the police in which he was again warned about criminal prosecution, interfered with his rights under Article 10(1) in a manner which was unlawful.”
In upholding part of Miller’s challenge on the narrower grounds, Knowles J explained his reasoning:
“There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.“
His Honour concluded by stating that:
“… the police’s treatment of the Claimant thereafter disproportionately interfered with his right of freedom of expression, which is an essential component of democracy for all of the reasons I explained at the beginning of this judgment.”
A link to the judgement in Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin) can be found below:
Proposals to liberalise the Gender Recognition Act 2004 are, undoubtedly, causing heated debate and much controversy across the United Kingdom. There are strong opinions on both sides of this debate and Knowles J acknowledged as much in the Miller case:
“The Claimant’s Tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). I am quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition. Unsubtle though they were, the Claimant expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons. This conclusion is reinforced by Ms Ginsberg’s evidence [CEO of Index on Censorship] which shows that many other people hold concerns similar to those held by the Claimant.”
This case is, however, not a green light for people to say what they like – no matter how offensive their remarks may be. Freedom of speech and expression carry responsibilities and people should be mindful of this. That said, cases which have at their centre arguments over freedom of expression will turn on their facts. It is useful to realise that legitimate expressions of free speech will be protected and upheld. It’s a question of balance, but this is easier said than done – much more difficult to achieve in practice.
Seán Crossan's Scots Law 