Monthly Newsletter

FSU calls on West Yorkshire Police to wipe records of ‘Quran-gate’ pupils

As widely reported, the FSU has written to West Yorkshire Police, urging them to delete the ‘non-crime hate incidents’ (or NCHIs) from the records of four pupils at a school in Wakefield who were suspended over minor, accidental damage caused to a copy of the Quran (Epoch Times, Epoch Times, Mail, Mail, Times).

The schoolchildren were suspended from Kettlethorpe High School last week after a student (who happens to be autistic) reportedly brought a copy of the Quran into school “on a dare” having lost a game of Call of Duty with his mates. He and his friends read aloud from it out on the school’s tennis courts, then walked back inside the school, where another pupil knocked it out of their hands and on to the floor. Apparently, it sustained a small tear and a smudged page.

For this, the four students were suspended, and the police were called in. At a meeting with irate ‘community leaders’ at a local Mosque, Chief Inspector Andy Thornton – who is leading the investigation into this dreadful crime – said the students’ treatment of the book has been recorded as an NCHI. As our Deputy Case Director, Ben Jones, remarked on TalkTV, it’s the sort of scenario that if you’d predicted it 20 years ago, you’d immediately have been denounced as an Islamophobic bigot.

In my letter to Inspector Thornton, I asked for assurance that the boys at the centre of the story have not had NCHIs recorded against their names and, if they have, to remove them immediately.

Last July, the professional body for the police in England and Wales, the College of Policing (CoP), issued new interim guidance on the recording of NCHIs following the judgement in the case of Miller v The College of Policing [2021] EWCA Civ 1926. According to the CoP: “Not all incidents reported need to be recorded. A record should only be made where it meets the threshold” set out in the National Standard for Incident Recording Counting Rules (NSIR). Those rules define a ‘hate incident’ as: “Any incident, which may or may not constitute a criminal offence, which is perceived by the victim or any other person as being motivated by prejudice or hate.”

Given that the school has said there was no “malicious intent” on the part of the four children involved (BBC), the recording of a non-crime hate incident is prima facie inconsistent with the definition contained in the NSIR, as there was no motivation of prejudice or hate (although it will now be perceived as such following the recording of it as a ‘hate incident’). What’s perhaps most troubling about this is that unlike actual crimes, NCHIs recorded against children’s names remain on their records when they reach adulthood.

As an organisation, the FSU is hard pressed to imagine a sequence of events more likely to chill public debate and freedom of expression than recording this episode as a ‘hate incident’ and attaching that data to the children’s records, in spite of the absence of any malicious intent.

Last week, a source close to the Home Secretary, Suella Braverman, told the Times: “These are very concerning reports. The Home Secretary is clear that the police response should always be proportionate and consider the welfare of young children as a priority over any perceived insults.”

It’s encouraging to hear Ms Braverman refer to the need for ‘proportionality’, not least because she now has the option to issue a statutory Code of Practice on the recording of NCHIs that will supersede the CoP’s interim guidance – and the Telegraph confirmed yesterday evening that she intends to exercise that option later this month. That she has the power to do this is thanks in no small part to the FSU’s Parliamentary work.

Last year, we worked with Lord Moylan and other peers on an amendment to the Police, Crime, Courts and Sentencing Bill that would have put an end to the practice of recording NCHIs in such a way that they can show up in an enhanced criminal record check. However, that amendment was withdrawn when the Government agreed to make its own amendment granting the Home Secretary the option to produce statutory guidance on the recording and retention of personal data relating to NCHIs. Following the passing of that Bill, the Home Office said the Secretary of State would at some point go ahead and issue this guidance.

No doubt hoping to get out in front of the Home Secretary and demonstrate that no further governmental intervention would be necessary, the CoP then rushed out its own, interim guidance on the recording of NCHIs which was an improvement on the previous iteration.

But with constabulary in West Yorkshire – as well as South Wales, Hampshire and Sussex – so openly flouting the CoP’s guidance, the FSU is delighted that the Home Secretary is now going to issue the new Code of Practice.

You can read my letter to West Yorkshire Police in full here.

If you’d like to know more, the FSU’s detailed briefing on NCHIs can be accessed here. Or alternatively, for a quick, five-minute read on the topic, our FAQs on NCHIs is here.

Online Speakeasy with Simon Fanshawe – register for tickets here!

I’m delighted to announce that on Tuesday 18th April I’ll be joined in conversation at an exclusive, FSU members-only Online Speakeasy with writer and broadcaster Simon Fanshawe OBE.

Simon has had a career that stretches from being an award-winning comic (Perrier Award 1989) to a Sunday Times feature writer, as well as a broadcaster and columnist. He is the author of the best-selling book The Power of Difference, which brings together his own experiences and the latest research to explain why inclusion is more than just being nice to people, why unconscious bias training isn’t the fix we need and why listening to all individual voices, not assuming that different groups of people have a single homogenous viewpoint, is key. He was one of the co-founders of Stonewall, but resigned from the organisation in 2019 because he believes it was going about promoting diversity in the wrong way.

This is an online event and FSU members will be sent a link separately so they can attend via Zoom – look out for the email, as this is going to be a great discussion! You can find out more about the event here.

If you’re not yet a member but would like to attend this and the other similar events we organise please join here.

The Worker Protection Bill and the spectre of the ‘banter police’

The FSU has been briefing MPs on the Worker Protection (Amendment of Equality Act 2010) Bill, a little-known Private Members’ Bill proposed by Lib Dem MP Wera Hobhouse, which will have disastrous consequences for free speech and impose huge compliance costs on Britain’s one-and-a-half million businesses.

You can read our briefing document in full here.

In my capacity as FSU General Secretary, I’ve written to the Business Secretary and Minister for Women and Equalities, Kemi Badenoch, asking her to press pause on this legislation, not least because all the businesses affected by it should be properly consulted and the public should have an opportunity to debate such a significant expansion of the Equality Act before it becomes law.

One of the (many) things the Equality Act 2010 did was to impose a legal duty on employers to protect workers from harassment by other employees defined as “unwanted conduct relating to a protected characteristic” (i.e., age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation) where that conduct has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”. 

However, the Hobhouse bill will expand that duty, rendering bosses additionally liable for harassment of their employees by members of the public that they come into contact with while doing their jobs. If we were just talking about sexual harassment, that would be one thing. But this bill actually seeks to extend third-party liability to every type of ‘unwanted conduct’ already prohibited by the Equality Act, including overheard conversations. In other words, if the bill becomes law, employers will have a duty to protect their workers from overhearing ‘upsetting’ remarks made not only by their colleagues, but by members of the public as well.

Following pressure from the FSU, the Government amended the Bill at report stage to create a narrow exemption. Under the amendment, employers will not be liable for a failure to prevent harassment of an employee by a third party where the conduct is:

  1. merely overheard by the employee, and not directed at him or her;
  2. an opinion on a political, moral, religious or social matter;
  3. not an indecent or grossly offensive opinion; and
  4. unintentional, rather than intentional harassment.

I’m grateful that the Government has tried to mitigate the harm the Bill will do to British businesses by backing this amendment. But given that all four conditions will have to apply for the speech in question to be protected – just one applying will be no good – this is an extremely narrow exemption, only likely to protect a small sub-set of speech. Humour and sports chat fall outside the exception, quite arbitrarily, as do philosophy, academic discussion and artistic or literary or critical speech, unless these are caught by the mysterious term ‘social matters’. The exception will also fail if the speech is ‘indecent or grossly offensive’ – a formulation which, in the opinion of the Law Commission of England and Wales, is unacceptably subjective and which, in our opinion, should not be disseminated more widely through the statute book.

What about pub banter or football chants? Notwithstanding the Government’s amendment, if a barmaid or stadium steward overhears something they find upsetting that relates to a protected characteristic, even if it isn’t addressed to them, they can still sue their employers for harassment.

The Bill presents a particular challenge to employers with public-facing staff because it makes them legally liable if they fail to take what Clause 1 of the Bill as drafted describes as “all reasonable steps” to prevent third-parties harassing their employees. Will employers be required to proactively prevent anything that might constitute harassment? And what might that look like in practice? Will pubs be expected to put up signs saying, ‘No banter allowed’? (You can watch me discuss these points on GB News here). Setting aside the chilling effect this will have on free speech, there are the eye-watering compliance costs to consider. What sort of impact are they likely to have on British pubs, many of which are already struggling to survive?

As I say in my letter to Ms Badenoch: “[The FSU] would like, at the very least, the Bill to be paused so it can receive proper scrutiny. I am sure you will agree that all the businesses affected by it should be properly consulted and the public should have an opportunity to debate such a significant expansion to the scope of the Equality Act 2010.”

Online speakeasy with Meghan Murphy – register for tickets here!

Our next members-only Online Speakeasy is ‘Defeating Twitter Bans and Defending Free Speech’, where I’ll be joined in conversation with Canadian journalist, writer and podcaster Meghan Murphy. Please do join us on Zoom at 7.30pm on Wednesday 8th March for what looks set to be a really interesting discussion. You can register for the event here.

Meghan is the founder and editor of Feminist Current, a feminist website and podcast, and host of YouTube channel The Same Drugs. She has spoken up about the issue of gender identity legislation and women’s rights, including in the Canadian senate and the Scottish Parliament, and has had to endure repeated threats of death, rape, violence and censorship (Telegraph). On the topic of censorship, Meghan was permanently banned from Twitter in 2018 for saying that men are not women. Thankfully, the ban was lifted by Twitter’s new owner and CEO, Elon Musk, in November 2022.

You can find Meghan on Twitter here and Substack here. To whet your appetite for the FSU’s Speakeasy, you can listen to Meghan’s appearance on The Joe Rogan Experience here and her TRIGGERnometry appearance here.

If you’re not yet a member but would like to attend this and the many similar events we organise, please join here.

Statutory tort restored to Higher Education Bill in victory for free speech

The Lords Amendments to the Higher Education (Freedom of Speech) Bill were debated in the House of Commons in February and there was a terrific outcome for academic freedom at England’s universities. Following the Government’s announcement that it would support the statutory tort in the bill as originally drafted, Lords Amendment 10 – which sought to remove the right of students and staff to sue universities that breach their speech rights in the County Court – was rejected at division by 283 votes to 161 (Times Higher).

This is a big victory and one the FSU can take the lion’s share of the credit for. When the Lords rejected the tort, we swung into action, contacting all the MPs we know, writing to the Education Secretary and her ministers, and urging academics who support the tort to write to them too.

In technical, legislative terms, clause 4 of the legislation as drafted creates a new statutory tort that will allow aggrieved parties to take legal action against universities in the County Court. In the FSU’s view, it is this tort which gives the legislation’s new free speech duties teeth.

Claire Coutinho, the Under Secretary of State for Education and the minister responsible for the Bill, is the member of the Government we have to thank for restoring the tort. Writing in the Telegraph, she said it “will allow those who have suffered any loss – financial or otherwise – to seek redress through the courts where needed. I’ve spoken to many leading academics who share my belief that the tort is necessary to secure the cultural change needed on campus.”

It was this aspect of the legislation that met with strong opposition in the House of Lords, where critics voted to strip out clause 4 in its entirety. Their main criticism of the tort was that it would subject higher education providers to costly, time consuming and unmeritorious or vexatious claims.

As we pointed out in our most recent briefing on the Higher Education Bill (here), criticisms of that kind were oblivious to both the legal architecture proposed by the legislation, and, in addition, the considerable power courts have to manage cases and prevent vexatious or misconceived claims from proceeding.

The first port of call under the Bill for anyone who believes their right to free speech has been infringed will be a specialist adjudicator (the new free speech champion at the Office for Students) who will deal solely with university free speech cases. This is intended as an informal, inexpensive, and less risky alternative to taking a university to court.

Moreover, what the Bill’s critics in the House of Lords seem not to understand is that the courts will assign cases to various ‘tracks’ depending on the value of the claim, thus ensuring the burden of litigation is proportionate to the interests at stake. A student who has missed a term of teaching due to an unlawful attempt to discipline him, for instance, might be put on the County Court small-claims track, while an academic dismissed from her well-paid professorship might well be assigned to the High Court.

The FSU is aware of dozens of academics who’ve been at the sharp end of cancel culture in British universities who have contacted Ms Coutinho over the past few weeks to tell her why they think the tort is essential. It is greatly to her credit that she has listened not to them and not to the panjandrums of the higher education establishment in the House of Lords.

Dis-/misinformation and the freedom to dissent – book your tickets here!

So-called dis- and misinformation have been singled out by many governments, institutions, charities, and commercial businesses as threats to democracy that require widespread censorship. But is this a genuine concern, or just an excuse to suppress dissenting points of view on issues like the Covid lockdowns, mRNA vaccines, the war in Ukraine and climate change? And even if the threat is real and the concern is genuine, how can we trust state agencies to accurately identify dis- and misinformation?

The FSU is bringing together a panel of experts to discuss these issues, including the Director of Big Brother Watch Silkie Carlo, writer and broadcaster Timandra Harkness, and two people identified by a 77th Brigade whistle-blower as having been flagged for disseminating ‘misinformation’ about the Government’s pandemic response – myself and the journalist Peter Hitchens.

Why not join us to discuss what lessons we should learn about how to counter the mis/disinformation police and defend the freedom to dissent.

In-person tickets for the event are now sold out, but you can join the waiting list in case places become available. Alternatively, if you’re an FSU member you can use the Zoom option to attend virtually – please register using the Zoom link supplied in recent emails from FSU events, or by clicking here.

If you’re not yet a member but would like to attend this and the many other events we organise please join here.

Help protect workplace freedom of speech – donate to Karen Sunderland’s fundraiser!

Karen Sunderland is suing her former employer after falling victim to ‘offence archaeology’. In 2018, when Karen was a Conservative candidate in the local elections, iNews dug up some tweets she’d posted in 2017 and managed to get her suspended by the party. The tweets reflected her sincere belief that aspects of Islamic doctrine are illiberal and unfair to women.

Four years later, when Karen was embarking on a new career, someone tipped off her employer about this episode and she was fired. Karen believes her comments were protected political speech, and that her dismissal was unfair and discriminatory. Her claim makes two important legal arguments.

First, her dismissal was either directly or indirectly because of her belief in conservatism, a belief protected by the Equality Act 2010. Establishing that conservatism is a protected belief would bring balance to the law: while there is case law protecting democratic socialism there are no equivalent protections for its right-wing counterpart. If she succeeds in winning this argument, the judgement would protect employees with conservative views which, while wholly lawful, are often distasteful to HR officers.

Second, Karen argues that she was dismissed because of her belief in freedom of speech. In short, free-thinkers attract controversy, and always have – and employers who put rigid speech codes in place are adversely affecting employees who believe in free speech. A finding that freedom of speech is a protected belief would give legal protection to other employees who manifest that belief by speaking their minds and testing received wisdom.

Karen’s trial begins on 28th March. She is being represented by barrister Francis Hoar, acting on a direct access basis. Francis is one of England’s best barristers when it comes to freedom of speech cases and party-political matters: in 2021 he published In Protection of Freedom of Speech, with a Foreword by Lord Sumption.

You can donate to Karen’s fundraiser here.

Discounted tickets available to Comedy Unleashed in Leeds

If any of our members or supporters live in or near Leeds, Comedy Unleashed is bringing its refreshing brand of stand-up comedy to The HiFi Club next month.

If a comedian gets cancelled, Comedy Unleashed puts them on. It believes the audience should be the only judge of whether something is funny. Sometimes we need to fight for free speech, and sometimes we just need kick back and enjoy its pleasures.

The line up includes:

  • Andrew Doyle – Stand-up comedian, inventor of spoof social justice warrior Titania McGrath and the host of Free Speech Nation and Headliners on GB News
  • Lewis Shaffer – An American, now living in England, Lewis is a Comedy Unleashed favourite: unpredictable, spontaneously surreal and utterly maverick.
  • Cressida Wetton – Cressida appears regularly on Headliners and has appeared on BBC Radio 4 Extra and numerous shows at the Edinburgh Fringe including Small Town Fools, a show about provincial life in Gloucestershire, one of her favourite topics.

FSU members and supporters are entitled to 25% off tickets. If you’d like to take advantage of that offer, click here, then click on ‘Book Here’ and enter the code word SAMIZDAT.

FSU is three years-old!

Believe it or not, the FSU was founded more than three years ago, in mid-February 2020. We’ve come a long way in that time. We’ve taken on over 2,000 cases and now have 16 employees and 11,000 members. We could not have grown so quickly without the support of our members and supporters, so a heartfelt thanks to all of you. If you’d like to give us a birthday present, you can make a donation here.

Kind regards,

Toby Young