In a week in which an NHS Trust declined to perform a hysterectomy on a teenage girl with cerebral palsy without her consent, it is tempting to choose as my topic the right to menstruate. The media coverage has been particularly odd with BBC News running the headline “Teenager is refused hysterectomy” as if she had asked for it herself. However, a positive development in Scotland has highlighted another way in which vested interests elsewhere in the UK seem keen to present people with unwanted gifts. The gift in this case being the right to say things which few people would consider acceptable.
The Scottish government has given its support to a bill by a Green MSP, which seeks to criminalise the incitement of hatred towards disabled people. BBC News (again) suggests that this brings Scotland into line with the rest of the UK, but this is not the case. In fact, while a similar reform was announced in the Queen’s Speech, the proposal has now been quietly dropped from a draft bill which is soon to be considered by Parliament. The reasoning behind this volte face is curious and was explained in committee by Maria Eagle, the Parliamentary Under-Secretary of State in the Ministry of Justice – and a former Minister for Disabled People. In essence, she suggested that, “we do not have that evidence” that incitement to such hatred is happening but, “If the evidence were to justify it, thought would be given to including them in the offences.” Elsewhere, she has indicated that in introducing new offences of incitement, the protection of the victims must be balanced with free speech.
As an exercise in logical jurisprudence, this analysis makes no sense. She is saying that it is wrong to ban behaviour that no-one engages in because this would interfere with free speech, but this is the free speech of people who do not exist. Furthermore, if anyone did engage in it, she would consider an interference with their free speech by banning it. She is too ready to protect a hypothetical right to express oneself in a socially unacceptable way – and the only sensible explanation is that she is hiding the real motive for the policy.
The reason of course is the influence of journalists. Henry Porter in the Observer is amongst those who have criticised the proposed incitement laws; predictably describing them as an attack on free speech, advocating a right to incite, perhaps. The media always supports untrammelled free speech, regardless of its political stripe, as it makes its money by producing absurdly provocative editorials and articles with little regard for accuracy. But it seems the reason for this freedom has been forgotten. In the past the press served an important function, to uphold democracy by criticising the state. Free speech was necessary in order to prevent the state from controlling this challenge to its authority.
But as editorial policies have become stricter, newspapers are more prone to control the views of their own journalists more vigorously than even the medieval church, with the result that diversity of opinion has actually diminished. While the fight for racial equality has seen the clamour of public opinion reflected belatedly in legislation, it seems that the state has been leading the way with regard to disability, with either indifference or hostility from the media. This brings me in a neat metaphorical cycle, back to mensturation – where the state is facing criticism for giving too many rights to disabled people. If the press will not fulfil its constitutional duty, it does not deserve free speech.