The Free Speech Bill is invitation to the far-right

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.