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Submission to the Scottish Parliament on the Hate Crime Bill

This is the evidence the Legal Advisory Council of the FSU has submitted to the Scottish Parliament’s Justice Committee about the Hate Crime and Public Order (Scotland) Bill. It is already an offence under Scottish law to stir up racial hatred, but this proposed legislation will extend this so it applies to “stirring up hatred” against people on the basis of their religion, age, disability, sexual orientation, transgender identity or variations in sexual characteristics, where “stirring up hatred” is defined as behaving in “a threatening, abusive or insulting manner” to a member of one of these groups, either with the intent to stir up hatred or where that is the likely outcome.

This definition of “hate crime” is far too broad and will enable groups claiming to speak for people in these protected categories to lobby the authorities to prosecute anyone who challenges their ideology on the grounds that doing so is likely to stir up hatred. Under this new law, not only will those who challenge identitarian dogma be vulnerable to prosecution, but anyone who possesses “inflammatory material” will be too, as will theatre producers who put on plays expressing these forbidden ideas and the actors who perform in them. If the Bill passes, Scotland will become the most aggressive regulator of speech in the United Kingdom and one of the most belligerent in Europe. And it could easily become the basis of a similar law in England and Wales.

Several members of the Legal Advisory Council contributed to this document, with Andrew Tettenborn, Professor of Commercial Law at Swansea University, pulling the contributions together.

Letter to Vice-Chancellor of Cambridge University

The language the Tudor historian David Starkey used in an interview with the young journalist Darren Grimes crossed the line, as he admitted when he apologised for it. He described it as “deplorably inflammatory” and a “bad mistake”. But did he really deserve to be subjected to what George Orwell described as the “Two Minutes Hate”? In his public apology, the historian said he had lost “every distinction and honour acquired in a long career” – a heavy price to pay for uttering one offensive word. Among the positions he lost was his Honorary Fellowship of Fitzwilliam College and that left me puzzled as to what standard Cambridge academics are being held to, given that a week earlier Dr Priyamvada Gopal, also a Fellow of a Cambridge college, was supported by the University after she tweeted “White Lives Don’t Matter”. “The University defends the right of its academics to express their own lawful opinions which others might find controversial,” it said. That’s a laudable principle, but why wasn’t Dr Starkey granted the same licence? We have written to Professor Stephen Toope, the Vice-Chancellor of Cambridge, seeking clarification.

Black Lives Matter: A Guide to Teaching Sixth Formers about Racism and Inequality

A teacher sent us this guide to teaching sixth formers about racism and inequality in the wake of George Floyd’s death and the Black Lives Matter protests and we thought it was so good we’ve decided to publish it. Teaching schoolchildren about these politically-charged issues in a balanced, fair-minded way is hard, not least because if you depart from the orthodoxies of the BLM movement you risk losing your job. To cite just one example, a headteacher at a school in Vermont called Tiffany Riley was removed from her job after she questioned some of the tactics of BLM activists on Facebook. Yet it is important to try and be balanced nonetheless. By that, we don’t mean presenting schoolchildren with the case for and against racism, obviously. Rather, presenting them a range of views about the prevalence of racism in contemporary Britain and America, about how racist those countries are compared to their past, about how racist they are compared to other countries, and the extent to which racism is responsible for racial outcome discrepancies. Children should be encouraged to think critically about these complicated issues and not succumb to group-think or, worse, publicly shame those who refuse to go along with the crowd. As the author of this guide says in the introduction, “Almost all politicians, journalists, academics and other public figures agree that racism is an evil that should have no place in our society, and that we must do everything we can to fight it. Yet there is also great disagreement about how to identify racism, the causes of inequalities between groups, and the right solutions for tackling racism.”

For any teachers drawn to these materials, but nervous about using them in their classrooms – perhaps because their school or college has enthusiastically endorsed the BLM movement – it’s worth remembering that schools have a legal duty to teach children about politics in a balanced way under the Education Act 1996. Section 406 prohibits “the promotion of partisan political views in the teaching of any subject in the school” and s.407 says that “where political issues are brought to the attention of pupils” they should be “offered a balanced presentation of opposing views”. There can be no doubt that the BLM movement and the views of its members are political. It is a self-professed Marxist organisation that, among other things, wants to dismantle capitalism. Its British supporters believe that the police and the criminal justice system is systemically racist, that the UK owes its wealth to the slave trade and colonialism and that racism is by far the biggest cause of racial inequality in contemporary Britain. Those are perfectly legitimate points of view and a wealth of evidence can be marshalled to support them. But there is an equally legitimate alternative point of view which maintains that the British criminal justice system isn’t racist, that the slave trade and colonialism made a negligible contribution to the UK’s economic success and that racism is a cause of racial inequality, but not the only cause and not the most significant one. Plenty of evidence can be marshalled in support of that point of view, too. If teachers are going to broach these issues in the classroom, they have a legal duty to present both sides of the argument to children, not just echo the views of the protestors.

What we like about this guide is that the teacher who’s compiled it has clearly made an effort to be scrupulously fair-minded and to remain as neutral as possible in what must be the most heated debate of the moment, introducing children to the most articulate advocates on all sides. Of course, for some partisans, neutrality means you’re siding with the enemy – that if you refuse to endorse every jot and tittle of the BLM narrative you are complicit in the systemic racism that’s disfiguring the lives of black people. We reject that. We believe it’s possible to teach children about racism and racial inequality in a way that doesn’t affirm all the claims of the BLM movement and, at the same time, isn’t remotely racist. This is a complex subject and we believe all good teachers who raise it in their classrooms have a duty to do so in a fair and balanced way – not just a legal duty, but a professional one as well.

Update on Stu Peters

Great news! Stu Peters, the Manx Radio presenter who was suspended for challenging the concept of “white privilege” in a heated discussion during a late-night phone-in, has been cleared of any wrongdoing. The Isle of Man’s Communications Commission – its equivalent of Ofcom – has completed its investigation and concluded that Stu did not breach the Programme Code. In a “decision notice” published on June 24, the regulator said:

Whilst issues surrounding race can be an emotive matter, the debate in question was conducted in a fair and measured way, and for the most part, in a calm and open manner.

This is a significant victory for the Free Speech Union, which went in to bat for Stu, one of its members. On June 7 it wrote to the Communications Commission, asking it to exonerate the presenter. We pointed out that whether you agree with Stu’s views or not, it’s clear that he was exercising his right to freedom of expression under Article 10 of the European Commission on Human Rights, which the Isle of Man is required to uphold under the Human Rights Act 2001.

Happily, the regulator agreed with us. The Commission noted that some of the language in the show – such as a caller using the word “coloured”, which Stu didn’t correct – was “insensitive”. But this wasn’t a reason to reprimand the presenter.

This must also be balanced against the provisions for freedom of expression in both the Code and the relevant Human Rights legislation which is clear that people are free to hold and express opinion without interference by public authority regardless of frontiers.

Toby Young, the General Secretary of the Free Speech Union, says:

The suspension of Stu Peters by Manx Radio and the investigation of him by the broadcasting regulator just because he challenged the concept of ‘white privilege’ is a clear breach of his right to free speech. The attempt to publicly shame people who don’t subscribe to the latest woke orthodoxies and rob them of their livelihoods is reminiscent of the struggle sessions during China’s Cultural Revolution. We would do well to remember that our grandparents fought and died to protect the right to challenge ideological dogma without being punished by the authorities.

Stu Peters says:

I am delighted to announce that I will be returning to Manx Radio’s Late Show on Wednesday 1st July.

I feel strongly that people should be able to discuss things rationally and respectfully – it’s the only way to resolve our differences – and worry that free speech for all could be under threat of being choked by some.

Manx Radio has acted properly and responsibly and I thank them for their faith in me. I would also like to thank the IOM Communications Commission for a thorough and fair report, and the thousands of people who have signed petitions and sent me messages of support. Of particular note is the Free Speech Union who took up my ‘cause’ and provided friendly guidance and practical advice – I would recommend them to anyone who has been told what to think or what to say.

Further letter to Change.org regarding Posie Parker

On 9th May we wrote to Change.org about the fact that it had taken down a petition by one of our members. Kellie-Jay Keen, more commonly known as Posie Parker, had her petition taken down on the grounds that it was “identified as hate speech”. The petition read: “Keep the dictionary definition of woman to mean adult human female.” This was in response to another petition calling for the Oxford English Dictionary to change the definition of woman to include “transgender woman”. Change.org claims to be a politically neutral platform that believes in free speech, yet it has taken down Posie Parker’s petition and left the other one on its platform where it has attracted nearly 35,000 signatures. We asked Change.org to reinstate Posie Parker’s petition, admit they were wrong to remove it and acknowledge that saying a woman is an adult human female is not “hate speech”. We haven’t received a reply so I wrote to Change.org again on 6th June.

Letter to the Morning Star Regarding Stella Perrett

We have written to Ben Chacko, editor of the Morning Star, to complain about his treatment of Ms Stella Perrett, a cartoonist and a member of the Free Speech Union.

Ms Perrett has been contributing cartoons to the Morning Star for over five years and in 2016 Mr Chacko described her as one of the paper’s “star cartoonists”. In 2018, he praised her and the paper’s other cartoonists for their “sharp-edged satire”.

Yet when a cartoon of hers in the paper on the weekend of 22nd – 23rd February it attracted criticism from trans activists, Chacko did not stand by her. (The cartoon depicted a crocodile entering a pond full of newts saying, “Don’t worry your pretty little heads. I’m transitioning as a newt!”) Instead of defending Ms Perrett, Mr Chacko terminated the paper’s relationship with her, apologised for publishing the cartoon and traduced her reputation. In a “Mea Culpa” published in the paper, he compared Ms Perrett’s cartoon to a “transphobic hate crime”, and accused her, indirectly, of “bullying and harassment”. Shortly afterwards, she lost her job working for the Public and Commercial Services Union.

It goes without saying that the cartoon doesn’t come anywhere near the threshold that would justify this kind of treatment. It doesn’t threaten violence and cannot reasonably be said to affect any person’s safety. While some may view it as offensive, that doesn’t begin to excuse the manner in which Ms Perrett was treated. “Sharp-edged satire” will inevitably offend some people; if it didn’t, it wouldn’t be “sharp-edged”.

We have asked Mr Chacko to apologise to our member and make it clear that his implied characterisation of her as a transphobe and a homophobe, and his depiction of her cartoon as a form of bullying and harassment, is unjustified. Alternatively, we have asked him to give her a right of reply in the pages of the Morning Star.

Letter to the Isle of Man Communications Commission About Stuart Peters

The Free Speech Union has written to the Isle of Man Communications Commission following the news that it is investigating Manx Radio over remarks made by one of our members – Mr Stuart Peters, who presents the Late Show. The investigation concerns statements made by Mr Peters on the Late Show in a conversation with a caller into the programme, Mr Jordan Maguire, on Wednesday 3rd June.

In the conversation between them, Mr Peters contested the assertion that he has benefited from “white privilege”. This cannot conceivably justify any investigation by the Commission. Surely, in challenging the idea that all white people are, by virtue of the colour of their skin, “privileged” and cannot fully grasp the problem of racism, Mr Peters was complying with the Commission’s ‘Programme Code’, e.g. upholding the principle that “racist terms” and “insensitive comments”, as well as “stereotypical portrayals” that might “cause offence”, are unacceptable. Whether you agree with Mr Peters’ views or not, it is clear that he was exercising his right to freedom of expression under Article 10 of the European Commission on Human Rights, which the Isle of Man is required to uphold under the Human Rights Act 2001.

The death of Mr George Floyd in the United States raises important issues about the criminal-justice system, and whether all races are treated equally in the eyes of the law – on both sides of the Atlantic – and these issues should be discussed in the public square. If we are to fully explore this issue and rectify any injustices, it is essential that all parties are free to discuss the matter without fear of censure. We cannot hope to get to the bottom of the issue if some people in this discussion feel they cannot express their views for fear of being publicly shamed or jeopardising their livelihoods.

Accordingly, we have written to the Commission and asked it to explain why it has launched an investigation into this matter, to confirm that it will be terminating the investigation and exonerating Mr Peters, and to make it clear that no such investigation will be started again in similar circumstances.

Letter to Ofcom Asking For its Censorious Coronavirus Guidance to be Withdrawn

In my capacity as the General Secretary of the Free Speech Union, I wrote to the Chief Executive of Ofcom, Dame Melanie Dawes, on 24th April to complain about its reprimand of Eamonn Holmes. According to the regulator, the breakfast television presenter had said something that “could have undermined people’s trust in the views being expressed by the authorities on the Coronavirus and the advice of mainstream sources of public health information“. Holmes’s sin, in Ofcom’s eyes, was to say on ITV’s This Morning on 13th April that any theory running counter to the official Government line – such as the one linking 5G masts and COVID19 – deserved to be discussed in the mainstream media. This was in spite of him saying the 5G conspiracy was “not true and incredibly stupid”. Ofcom said this view – the view that such theories deserved a public hearing, not that they were in any way right or plausible – was “ill-judged and risked undermining viewers’ trust in advice from public authorities and scientific evidence”.

In my letter to Dame Melanie, I pointed out that if Ofcom is going to prohibit views being discussed on television that might risk undermining viewers’ trust in public authorities during this crisis, that could easily be extended to anyone challenging the Government’s official line on a number of issues, not just the link between the virus and 5G masts. For instance, would Ofcom have reprimanded a broadcaster that challenged the advice of Public Health England, issued on 25th February, that it was “very unlikely that anyone receiving care in a care home or the community will become infected”? That advice was supposedly based on “scientific evidence”, yet as we now know it turned out to be wrong and the fact that hospitals discharged elderly patients back into care homes without first confirming that they were not infected with COVID-19 is one of the reasons that, according to the ONS, as of 1st May, 37.4% of all Covid deaths in England and Wales have occurred in care homes.

As I said in my letter, given that bad advice and misinformation about the virus is being disseminated in the public square, both by authorities like Public Health England and conspiracy theorists like David Icke, the best way to minimise harm befalling the public is not to prohibit public discussion of that advice and information, but to encourage it, so that members of the public (and care home managers) can make informed decisions about what advice to follow and what information to believe. To take the example of the theory Eamonn Holmes was referring to, if broadcasters aren’t allowed to discuss whether there’s a connection between 5G masts and the symptoms associated with COVID-19 – and present its exponents with the overwhelming evidence that there is no such connection – people are more likely to believe the theory, not less. They will think, “If it’s untrue, why is discussion of it forbidden by a state regulator?” As the US Supreme Court Justice Louis Brandeis said in his famous Whitney v. California opinion in 1927, “If there be time to expose through discussion the falsehood and fallacies… the remedy to be applied is more speech, not enforced silence.” In other words, sunlight is the best disinfectant.

De Montfort University follow-up

You’ll recall that I wrote to an administrator at De Montfort University in April to complain about his high-handed treatment of one of our members – a journalism student – who’d been put through a disciplinary process for supposedly bringing the University into disrepute. This was after a left-wing activist had lodged a complaint about him following a routine Twitter spat. The University concluded that our member was indeed guilty and threatened him with expulsion if he repeated the offence. This is a clear breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights, as well as being contrary to the University’s own free speech policies and inconsistent with its legal duty to uphold free speech under s.43 of Education (Nº 2) Act 1986, as I pointed out in my letter. I asked the administrator to explain himself, and warned him that we will legally challenge any further sanctions that are imposed on our member. You can read that letter here. Disappointingly, the letter wasn’t even acknowledged, let alone responded to. Consequently, I’ve written a follow-up letter, this time to De Montfort’s Vice-Chancellor, copying in Michelle Donelan MP, the Universities Minister. You can read that letter below.

Sheffield University follow-up letter

I wrote to Jake Verity, the President of Sheffield University Students’ Union, last month to complain that a free speech society that some of our members had set up at the University had been designated a “red risk” by the Students’ Union. That means the society’s officers have to attend “risk assessment” training and cannot invite any speakers on to campus without first having to submit a list of prospective speakers to the Students’ Union three weeks ahead of time for “full and final approval”. The students reached out to the FSU for help and, with the aid of the Legal Advisory Council, I wrote to Mr Verity, copying in the Vice-Chancellor, reminding him that both the Students’ Union and the University have a legal duty to uphold freedom of expression, and asking him to reassure me that he won’t withhold approval from any speaker the society proposes to invite except in truly exceptional circumstances and when legally permitted to do so. You can read my letter here. After not receiving a reply for several weeks, I managed to attend a Zoom meeting of the Council of the Students’ Union as an “observer”. At that meeting I managed to get a Council member to ask Mr Verity why he still hadn’t responded to my letter. As a result, he did respond the following day, but he didn’t provide me with the assurances I was after. Consequently, I’ve written back, asking him to do so. You can read his letter here and my reply below.