Julius Grower, an Associate Professor of Law at the University of Oxford has written an open letter to Labour MP and former trade unionist Mark Ferguson following the latter’s contribution to the debate around the urgent question, asked in the House of Commons last week, about freedom of speech in universities.
Towards the end of his remarks, Ferguson said: “Would my honourable friend [the Minister of State (Education), Catherine McKinnell MP] agree with me that the party opposite’s position is in fact a charter for Hizb ut-Tahrir, Holocaust deniers, and vaccine deniers to wander our universities freely?”
Here are some of the highlights from Prof Grower’s response to this extraordinarily unwise Parliamentary intervention:
I am afraid that your comments show a profound misunderstanding of the nature of the law upon which you commented, which I feel compelled to correct. You may very well have reasons for supporting the Government’s (I think, woeful) decision — condemned so far by over 650 academics, including 7 Nobel Prize laureates and a Fields Medallist — to pause the implementation of the Higher Education (Freedom of Speech) Act 2023. But the reasons you expressed today are fundamentally flawed ones. It is incumbent on you to do better.
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2. IT DOES NOT PROTECT HOLOCAUST DENIAL
The Higher Education (Freedom of Speech) Act 2023 does not purport to change the scope of the law on what is free to be said in English and Welsh universities. This point was expressly raised a number of times in the House of Lords, and was expressly responded to by the (then) Government. No one has seriously suggested otherwise since. Indeed, if you need confirmation of that, please read Akua Reindorf KC’s article in the Times Higher Education supplement. No lawyer has, as far as I am aware, suggested that she is wrong in saying what she has.
The definition of freedom of speech in the Act is expressly said to be that covered by Article 10(1) of the European Convention on Human Rights (as incorporated into English law by the Human Rights Act 1998). Article 10(1) is plainly and uncontrovertibly qualified by Article 10(2) and by Article 17. Furthermore, Article 17 has been interpreted by the courts, including the European Court of Human Rights, as specifically excluding Holocaust denial from the right to any legal protection.
Again, please see Reindorf KC’s article if you need confirmation of this. Ms Reindorf is an Equality and Human Rights Commissioner and an expert in equality and human rights law. She is correct in what she says.
Incidentally, although I do not think I should have to say this in order for my points to be taken seriously, it seems appropriate to make clear that I myself am Jewish, and am acutely aware of the problems of anti-semitism on our campuses.
However, I believe that the solution to that issue is to give effect to legislation which will more effectively allow Jews and Zionists to hold their own events on campuses, and stop them from being closed down by murky threats made by mobs. Unfortunately, as we have just seen with Suella Braverman’s cancelled talk in Cambridge, this is precisely what is happening under the current (unreformed) regulatory regime.
3. IT DOES NOT PROTECT HIZB UT-TAHRIR’S SPEECH.
It is not wholly clear from your remarks what you meant by the law being a “charter” for Hizb ut-Tahrir. Clearly it is not legislation which alters the fact that Hizb ut-Tahrir is a proscribed organisation. I assume therefore that you meant that the Act would cover – and allow for the promotion of – Hizb ut-Tahrir’s ideology.
This is, once again, entirely false. Expressing support for Hizb ut-Tahrir, and spreading or supporting their hateful ideology, is a criminal offence. People can go to prison for doing so. As said above, nothing about the 2023 Act changed (or even purported to change) the scope of what can and cannot be said as a matter of English law, whether within or without universities. Section 1(2) of the Act refers to “freedom of speech within the law”.
The key words there are: “within the law”. Praising/expressing support for/promoting the propaganda of a terrorist organisation is unlawful speech and thus not covered by the Act. Even if you are not a lawyer, this should, I’m afraid, have been obvious to you upon even a cursory reading of the legislation.
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Mr Ferguson, you are a member of the House of Commons and a representative of both your constituents and the British people more generally. It is not, I think, too much for us to expect that you get the basic facts right before intervening in debates. In this instance, you have utterly failed to do so.
This has not only left your contribution to this morning’s proceedings entirely pointless (and made you look faintly ridiculous), but has therefore also failed to add anything of use to what both sides say is a difficult issue that requires careful thought and compromise. As a nation, we need you to do much better than this.
Worth reading in full.
