Rowan Atkinson has recently spoken out (Telegraph, BBC) about the effect of discrimination laws on “creative free expression”, with reference to Miriam O’Reilly’s victory over the BBC in her recent age discrimination case. He seems to deplore this intrusion, as if television is somehow an area where society’s mores should not apply.
Previous discrimination law (in the form of the Sex Discrimination and Race Relations Acts) had exceptions for “dramatic performances”. You could hire a woman to play a woman, and you could hire a black person to play a black role (Equally you could hire Mr Atkinson to put on a silly voice and play an Indian waiter*, if you find that sort of thing funny. I do.) Pretty much total creative free expression. Judges would almost certainly still apply this today under the Equality Act’s “Occupational Requirements” exception – although there is I suppose a question as to whether there is still exactly the same freedom, because it is not set out quite so explicitly in the Act, and a judge has to decide that the occupational requirement is “proportionate”. I see no reason to think they wouldn’t respect creative freedom in casting for a dramatic (or comic) performance. No one is going to decide that Rowan Atkinson was shamefully denied the Fresh Meat gig in place of Jack Whitehall, on grounds that he is better qualified to play a posh dickhead. He’s just the wrong age to play the character, and that’s fine.
But not everything on telly (or radio) should have a blanket exemption from discrimination law in the name of creativity. ‘Countryfile’ is not a dramatic performance and should not be treated as one (no matter how ‘contrived’ Atkinson thinks it may be). Neither should the News, or the Today programme. There is a serious debate to be had about society’s view of women, older people, and particularly older women in many walks of life, particularly in high profile roles, and television and radio are no exception. Miriam’s actions in bringing the case, the tribunal’s decision in upholding it (and, frankly, the BBC’s mea culpa in the wake of it) should be applauded.
This is the law being used very much for its proper purposes, and in the proper context, as an instrument of both individual justice and social change.
* (I should perhaps make clear that I’m not saying Indian waiters have silly voices. Just that Rowan Atkinson did in that sketch.)