Has UK law quietly shifted from objective standards to perception-based tests in areas such as discrimination, harassment and public order?

[CoolBlueBear]

Having studied law in the early 1980s, I’ve been struck by what seems to be a gradual change in the way these laws are written and applied.

In the past, the emphasis was often on objective questions: what was said or done, and what a reasonable person would make of it. For example, under the Police and Criminal Evidence Act 1984, police powers such as arrest generally depended on objective “reasonable grounds” tests rather than how a particular individual experienced the situation.

More recent statutes often seem to ask an additional question: how was the behaviour perceived by the person on the receiving end? Under the Equality Act 2010, for example, harassment can depend partly on whether conduct was perceived as violating a person’s dignity or creating an offensive environment, although there is still a requirement that it be reasonable for the conduct to have had that effect. Public order law also focuses on whether behaviour is likely to cause harassment, alarm or distress to those exposed to it.

Of course, perception isn’t the only factor, and there is usually still a reasonableness test. But it seems to me that once the law starts taking account of people’s feelings and perceptions, public bodies have much more scope to interpret concepts such as offence, dignity, harassment and discrimination.

Cases involving employers and institutions have shown the courts pushing back where organisations have treated protected beliefs or lawful expression as inherently unacceptable. In cases such as Forstater v CGD Europe, and Phoenix v The Open University, tribunals have made clear that disagreement with or discomfort about a belief is not enough to justify restricting it, even where it causes offence to others.

I wonder whether this helps explain why so many public disputes today end up being arguments about perceptions, identity and culture rather than simply about facts and rules. Has the law itself created more space for these disagreements, leaving institutions to navigate questions that are as much cultural as legal?

But it seems to me that once the law starts taking account of people’s feelings and perceptions, public bodies have much more scope to interpret concepts such as offence, dignity, harassment and discrimination.

Well, yes, a clear example of this is the increasing weaponisation of the vague subjective concepts of dignity or discomfort around the existence of trans people. No one has ever yet been able to successfully explain why having a trans person in an adjacent locked toilet cubicle infringes on anyone's dignity or privacy, but it's enough that some proportion of people feel that it does, despite feelings being unquantifiable. Realistically there's lot of people someone might feel uncomfortable sharing a space with, including someone of a different race, religion or sexuality, but in no other case do we make that person responsible for other people's feelings of discomfort around their presence or existence.

Literally nobody has that objection and please don't make this thread all about trans people and loos.

The objection is sharing the shared space between the toilet cubicle and the outer door and it's based in the fact that the vast, vast majority of violence against women (and men) is done by men.

Back to the subject please.

Having a female trans person in the cubicle next to me would not infringe on my dignity and privacy because they are female as am I

Having a male trans person in the cubicle next to me would infringe on my dignity and privacy because they are male

It's not that a person is trans that causes a problem it is their sex.

Seriously, some trans people and their supporters are obsessed with making every thread about toilets

@CoolBlueBear

You are correct in your analysis I think.

I used to be a JP, one of 3 volunteers on each bench who deal with the majority of crime as you will know.

I stopped when the law of harassment was changed so that the perception of the victim, or even a bystander, that verbal harassment had occurred became overwhelmingly more important than the intention of the accused. A person could overhear somebody calling somebody else something they would find offensive, for example, and report them for harassment even when the target of the words was completely unconcerned.

With that change it became the perception of the action which made the same action a criminal offence on one occasion and not a criminal offence on another.

That was quite a long time ago and it's got quite a lot worse, I think.

The crucial question is whether this shift was an unintended consequence or a deliberate policy choice.

When legal tests were primarily objective, the focus was on observable facts and what a reasonable person would conclude from them. That provided a degree of certainty and predictability. Once legislation starts attaching legal significance to perception, identity and subjective experience, the scope for interpretation inevitably expands.

Perhaps legislators underestimated how far-reaching that change would be. Or perhaps they understood perfectly well that moving from objective criteria towards perception-based tests would produce different outcomes and give institutions greater discretion in resolving competing claims.

Either way, it seems difficult to deny that many of today's most contentious disputes arise precisely because the law now asks questions that previous generations of legislation largely avoided. Instead of asking only "what happened?", we increasingly ask "how was it experienced?" and "whose perception should prevail when perceptions conflict?"

The debate over single-sex spaces is an obvious example. Once legal and institutional decisions move away from objective categories and towards questions of identity and perception, outcomes emerge that many people would previously have regarded as inconceivable

I agree with the post above.

The victimology narrative has been around for a good 20 years, it when I first noticed it, so it most probably started way before then. Everything seem to flip over when they decided the individual had the right to decide they'd been offended and only the victims account was important.
They made it an absolutism, they took away anyone who was accused of giving offense the right to defend themselves, there was no perspective kept, there were no circumstances taken into consideration, the power was given to the individual only.
And the perpetually offended have thrived since.

Yes, OP, I agree. When I studied employment and discrimination law over 20 years ago the lecturers' emphasis was on us understanding objective tests that had to be met in order to decide if the law was broken. I used to love arguing in seminars as to what the man on the Clapham omnibus would think about things 😆

I believe adding the perception element into things was a genuine attempt to help in cases where the strict legal definition wasn't always assisting victims in areas where sometimes perpetrators's behaviour was more subtle than flagrant, like sexual harassment, stalking and racial discrimination, but I believe the perception test is often applied too broadly now and given too much emphasis over the legal definitions and conduct.

Or more simply the police got so shit at arresting difficult to find people for the things that matter to us that they started arresting very easy to find people who were simply expressing an opinion!

And the politicians in a desperate attempt to show interest in sections of the electorate that they feel might be influential in the outcome started passing very vague and unclear legislation.

Oh for the days when we were mainly a common law country with law settled and evolved over decades.

I agree with the formulation of legislation becoming increasingly vague and subjective - that was something my law lecturers complained about decades ago and it's a problem that's increased.

Legislation is like a computer program, if you write it without strict definitions and rules then the outcome you get is going to be a case of garbage in, garbage out.

I don't know, it felt at the time quite deliberate in the way we were trained to implement the new law. Very much a move towards hiw important feelings were over fact. As recall it was about the same time that we broke the rule that you punish the action not the outcome.

The new offence of "causing death by careless driving" came in. Which meant that two people could be driving in exactly the same way but one who quite by chance killed someone was given a completely different sentence from one who quite by chance happened not to.

That law change was driven by the feelings of the loved ones of the dead person. There have been other similar law changes since, I think. And of course "victim impact statements" read out in court which should have no bearing on the sentence but were introduced deliberately so that everyone would think that they did. A rapist should not get a shorter or longer sentence depending on how much his victim has been affected by the crime or how much of that impact she is prepared to share in court.

One of my last straws was being forced as part of a majority verdict to convict a 13 year old girl for racial harassment for doing nothing more than dancing "in an Indian fashion" across a road in front of an Indian shopkeeper's stationary car while, after getting mildly tipsy on WKD at her birthday party. No evidence was presented that she meant it as harassment, it could equally well have been a childish celebration.

I felt very much it was the thin end of a wedge I didn't want to help be pushed in any further.

Perhaps this is an issue that deserves much wider public attention.

What strikes me is the apparent gap between legislators, who increasingly enact laws incorporating concepts such as dignity, identity, offence and perception, and courts, which often seem to be trying to impose objective limits and reasonableness tests on those concepts.

Many of the most significant recent cases appear to involve judges drawing boundaries around legislation to prevent subjective claims from overwhelming other rights and freedoms. In effect, the courts are often trying to preserve legal certainty where Parliament has introduced broader and more open-ended language.

My concern is what happens over the longer term. Many senior judges were trained in a legal culture that placed great emphasis on objective tests, reasonable persons and observable facts. As that generation retires, will future judges, educated and practising entirely within the newer framework, approach these statutes differently? If so, the balance between objective and subjective interpretation may continue to shift.

Whether one agrees with that direction or not, it seems to me that it is a profound constitutional and cultural change that deserves far more public debate than it currently receives.

One of my last straws was being forced as part of a majority verdict to convict a 13 year old girl for racial harassment for doing nothing more than dancing "in an Indian fashion" across a road in front of an Indian shopkeeper's stationary car while, after getting mildly tipsy on WKD at her birthday party. No evidence was presented that she meant it as harassment, it could equally well have been a childish celebration

That’s horrific imdunfer and I can see why it was the last straw for you

I've long thought the concept of one person's hurt feelings / offendedness is wrong. And it's funny how "we believe you" applies to some claims and not others.
It's time we got back to evidence and the "reasonable person on the omnibus".

Or more simply the police got so shit at arresting difficult to find people for the things that matter to us that they started arresting very easy to find people who were simply expressing an opinion!
As a motorist you notice that They are very keen on prosecuting the easily-identifiable. And they do stuff all about the not-so-easily-identifiable e.g. those on two wheels..

I also think since the introduction of the HRA in 1998, and a lot of the legislation enacted by the Blair government, the legal landscape has become more continental in practice than it was previously. We've definitely moved more from the flexibility and adaptability of Common Law jurisprudence, based on precedent and case law, towards the continental type of jurisprudence which is based on codified legal principles and a deductive approach to legal reasoning, with a much stronger emphasis on structure and uniformity.

You mean this Maya Forstater case?

The judgement noted:[8][41]

"Just as the legal recognition of civil partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender 'for all purposes' within the meaning of GRA does not negate a person's right to believe, like the claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.
The summary went on to say:

This judgment does not mean that those with gender-critical beliefs can 'misgender' trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment under the [Equality Act]."

@ItsCoolForCats I've just realised this ^ isn't you.

I think in the instance of someone at that age it seems a bit extreme, but part of the problem if this had been an adult is saying that "how most people think" should not be challenged.

If an adult had done that, who presumably lives in the real world and would be aware of implicit or unintentional racism, it is enough to say they can go on being racist because they were a bit tipsy or whatever.

If that is the argument how can any of us on FWR complain about TW saying they feel they are women and we are being discriminatory to say they are not. And not just to say it, but want to use the law to enforce TW being excluded from biological women only events and services.

You cant have it both ways. Dismissing what someone else experiences as discrimination or insulting means that other can tell women just to shut TFU and stop whining.

I don't think in general it has shifted that way, but for a long time on equalities laws and harassment there has been the presumption a lot of the time as how the person who is the target perceives it. In part to avoid those who have used say racist language saying they did not mean it, as a way of getting away with it.

Just to add "objective" standards are never objective. They are the standards of not necessarily the majority but those who have the power to be decision makers.

One of the problems if we now have laws that deal with issues that aren't about "facts" eg accused was seen stealing an overpriced muffin, but about the consequences of behaviour.

I came across similar recently when finding there was to be a naked bike ride at the end of the children's carnival.
I looked up the law on indecent exposure. It is indecent exposure if you can prove that the naked person intended to cause shock or distress.
How can you prove what someone was thinking?!

No-one needs to explain it, these men have no right to an explanation as to why women are asserting their legal rights.

I'm not sure what point you're making.

If you're referring to Forstater, para. 103 of the Employment Appeal Tribunal's judgment is important. The EAT made clear that Maya could not be required to refer to a transwoman as a woman simply to avoid a harassment claim, because that would amount to restricting the manifestation of her protected belief and her freedom of expression.

That does not mean there can never be harassment. Deliberate misgendering for reasons unrelated to the expression of a protected belief, or conduct going beyond the mere expression of that belief, could still amount to harassment depending on the circumstances.

In fact, the case illustrates the distinction I was making in my original post. Section 26 of the Equality Act requires a tribunal to consider:

1. The complainant's perception of the conduct.
2. The other circumstances of the case.
3. Whether it was reasonable for the conduct to have had that effect.

The first element is subjective. The second and third introduce objective constraints.

My point is that organisations can appear to place disproportionate weight on the first limb, how conduct is perceived, while giving insufficient weight to the objective reasonableness assessment required by the statute. The EAT's reasoning in Forstater can be seen as a reminder that offence or distress, by itself, is not enough; there must still be a proper assessment of the surrounding circumstances and whether it is reasonable to characterise the conduct as harassment.

I’m pretty sure that making women justify standing up for their rights is part of the fetish. Humiliating women is central to it which is why so few want third spaces set aside for them.

I think the ‘reasonable person’ has in itself changed though. The ‘reasonable person’ of the 1980s/90s/2000s was far less offended or sensitive than the person of the 2020s, and they would’ve found brushing off undesirable interactions easier than we do now. Tolerating unpleasant views was normal life when I went to school in the 90s and 2000s, when it was mainstream to use fairly vulgar humour/insults and the gist was ‘if you don’t like it, ignore it’.

I actually wouldn’t want to be a teenager now. They’re held to very high behavioural standards and everything they do and say is recorded and documented. No chances for organic personal growth, just constant ‘repercussions’.