Some Jewish groups have been rightly warning about the threats posed by the Higher Education (Freedom of Speech) Bill. The government does not seem to understand how easily far-right thugs will be able to manipulate the law, if it is passed. For decades, there has been an argument in universities over whether far-right speakers should be given a platform. The debate can be traced back to a motion passed by the National Union of Students in April 1974, and reaffirmed periodically since then, which encouraged student unions to refuse appearances by “openly racist or fascist organisations or societies”. The main (but not the only) target of the phrase “racist or fascist organisations” was the Holocaust-denying National Front.
Ever since, students have debated how far the principle of no platforming can be extended, while ministers in both Conservative and Labour governments have tried to keep this exclusion as narrow as possible. Anti-racists have insisted that fascism and Holocaust denial is unlawful harassment, contrary to Equality Act. They have used that Act as a barrier to keep hate speech out. Ministers disliked that argument, warned against its expansion, and have tried to protect the free speech of speakers who were on the right, but not fascists. They have done so through guidance.
The bill breaks apart this compromise in which universities have been allowed to set the limits. It creates a new and absolute “duty to take steps to secure freedom of speech”. The first clause begins: “The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve.” The key word here is “must”. The bill takes away from universities the discretion they previously enjoyed to say that of course free speech is important but it is not the only value at stake; equality law also applies. Maybe it did in the past, but it will cease to if the Bill passes.
Under the new law, universities are only required to uphold free speech so far as is “reasonably practicable”. Ministers have said that this language provides wriggle-room. But it does not. “Practicable” is a concept we encounter in different areas of the law. It means what it says — that a university might consider issue of practicality in deciding when or how to put on an unwelcome event. They might not have to host a talk if they were contacted for the first time an hour before the event was due to start. What a university will no longer be able to do is refuse to host a speaker because they are antisemite.
The government could have put into the legislation a “saving clause” — words saying simply that the Equality Act still applies — but they have refused to make that change.
The worst thing about the bill is that it allows anyone to sue a university for damages, an injunction or a declaration in circumstances where they believe their free speech has been limited. The people who will decide what the bill means are not ministers but judges. And they are going to say that the bill has a clear purpose. It constitutionalises free speech, making it a defining purpose of universities, in the same way that the First Amendment makes free speech a defining legal principle in the US. Students will ask, “what about the ban on hate speech?” Judges will tell them: “I’m sorry, I have to ignore it.”
There is one other aspect which is also a particular concern to Jewish groups. The bill says that from now on, no “premises” of a university may “deny” any person or group from attendance on the grounds off their “ideas, beliefs or views”. As the bill is drafted, this rule is absolute. No exceptions are allowed. Premises include prayer rooms, seminar rooms holding events, etc. If the bill passes in its present form, organisers of religious events will be obliged to open them up even to people who disagree with them.
Imagine, for example, that there was a “free speech society” on campus which (as has happened in the recent past) had prominent antisemites in its leadership.
That group would be entitled to demand a right to be given advance notice of every meeting of every Jewish organisation on campus. And they could insist on attending. If excluded, the antisemites would be entitled to sue for damages for this restriction of their free speech.
That clause threatens to make life a misery for any other societies on campus that organise around belief.
Ministers will say they never intended to create these problems, that this wasn’t the bill’s purpose. But that’s the thing about laws; once made, they stay on the statute book long after ministers have left office. The time to correct these mistakes is running out.
David Renton is a barrister and historian, and the author of No Free Speech for Fascists; Exploring ‘No Platform’ in History, Law and Politics
