In July, the Secretary of State for Education, Bridget Phillipson, issued a statement to the House of Commons saying she intended to stop commencement of the Higher Education (Freedom of Speech) Act “in order to consider options, including its repeal”.
It was fitting that the Labour government would declare war on free speech in a written statement, posted quietly to the House of Commons website on a Friday – a good day for bad news, as any journalist will tell you – and unaccompanied by any opportunity for parliamentary debate.
This was a very carefully crafted Act designed to secure academic freedom and address the free speech crisis in our universities. Having received cross-party support during the last Parliament, its most important clauses were due to come into force on 1st August.
The legislation would have imposed a legal duty on universities in England to uphold and promote free speech and it would have extended that duty to student unions. It would also have secured the freedom of academic staff to question and test received wisdom and put forward new ideas and controversial opinions.
However, because Rishi Sunak called an election before the Act had been fully implemented, this Government has seized its chance to derail it.
Since then, the Education Secretary had repeatedly sought to defend her decision by recourse to the canard that this vital piece of legislation risked enabling ‘hate speech’ and Holocaust denial on campus.
In a briefing to the Times back in August, for instance, she claimed that the new Act would have made it harder for universities to deny a platform to Holocaust deniers.
In Parliament last month, she responded to a question from Shadow Education Minister, Gagan Mohindra, on the future of the Act by claiming it “might have opened up the potential for hate speech, including holocaust denial, to be spread on campus, something that the previous minister, in the last government, was unable to rule out”.
This week, during an appearance on The Spectator podcast ‘Women with Balls’ filmed live at the Labour Party Conference she was asked whether the Act will ever be commenced, to which she replied:
“The reason [for pausing commencement] was my concern about the impact that this legislation could have on minority students, and I’d heard especially from Jewish students, from community organisations, that they were concerned about the risk of Holocaust denial and hate speech on campus.
“I think we do have to reflect very carefully, that whatever the intentions of the legislation, if it leads to hate speech on campus… the previous universities minister herself was unable to be clear that Holocaust denial would be prevented.”
But this simply isn’t true. The definition of “freedom of speech” in the Act is that set out in Article 10(1) of the European Convention on Human Rights (ECHR) and the European Court of Human Rights has consistently ruled that Article 17 of the ECHR excludes Holocaust denial from the purview of Article 10.
Nor would the new Act open the floodgates to other unlawful speech, given that it only protects free speech “within the law”. English law already provides strong protections against harassment and hate speech, e.g. the Crime and Disorder Act 1998, s.145-146 of the Criminal Justice Act 2003, Parts 3 and 3A of the Public Order Act 1986, s.1 of the Malicious Communications Act 1998, s.127 of the Communications Act 2003, s. 26 of the Equality Act 2010.
Just in case that wasn’t already enough for Ms Phillipson and her special advisors to be getting along with, Article 10(2) of the ECHR, as clarified and enforced through various European Court of Human Rights rulings – e.g., Handyside v the United Kingdom (1976), Sunday Times v the United Kingdom – allows for “legitimate” and “proportionate” interference with lawful speech by individual states.
Rather than detracting from any of the above provisions, the new Act contains provisions that would protect Jewish staff and students and Jewish university societies from attempts by student unions and radical activists to sabotage their efforts to arrange meetings and invite external speakers on to campus.
Indeed, a clause in the new Act makes it much more difficult for universities to cite “security costs” as a reason to disinvite controversial speakers – an excuse previously used by City University for insisting a Jewish society rescind its invitation to Mark Regev, then Israel’s ambassador to the UK.
That is in part why the Free Speech Union (FSU) has formally commenced legal proceedings against the government following its decision to stop this vital piece of legislation coming into force.
Thanks to the generous support of our members and supporters we filed a claim against the Education Secretary on 5th September. Our lawyers have put a powerful legal argument before the High Court. You can read our ‘Statement of Facts and Grounds’ here.
Make no mistake: these proceedings are extremely important. As Akua Reindorf KC, the UK’s leading equality barrister, puts it, “this is not about petty ‘culture wars’; it’s about people’s lives, livelihoods and fundamental human rights”.
