Monthly Archives: June 2021

A level playing field for tenants?

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We face one of the most pro-landlord governments in history. The Parliamentary Under-Secretary of State for Housing, Eddie Hughes, is a landlord. The Prime Minister is a landlord. One in four Conservative MPs are landlords.

But there will still be some moments of opportunity when the press and politicians are compelled to engage with our proposals for reform. In the autumn, for example, the government will publish its proposals for the abolition of section 21

Tenants’ rights’ advocates have always known that you can’t abolish section 21 without rewriting other parts of our housing law.

1) What will happen to ground 8? The government wants to tighten it to make it easier to evict. But because of Covid and Covid-related rent arrears, the number of people with arrears of more than 8 weeks rent have rocketed. In those circumstances, the arguments for loosening ground 8 and giving tenants more chances to pay off their debts are overwhelming

2) And what about tenancy deposits? One of the considerable virtues of the present section 21 is that it has significantly reduced the long-standing disgrace of landlords taking deposits, holding them at the end of the tenancy, and forcing tenants to endure a bitter and hopeless battle to get their money back.

There has to be some mechanism, of similar force, to the rules currently in the Housing Act 1996 which mean that no section 21 notice can be served if a deposit was left unregistered.

Here’s a modest proposal: why not say that all notices are invalid: no section 8 notices can be given – if a deposit has been taken and not registered?

I also want to talk though about a vision to take us beyond the current crisis.

Plainly, at a certain basic level, you couldn’t ever have a level playing field between landlords and tenants. Or not in the housing market we have now, where in our largest cities it is normal for people to spend half their net income on housing.

Every landlord is renting over something inessential to them: the rent – the profit they can make – on their 2nd, their 3rd home, in some cases their 100th home. While very tenant is negotiating over something essential to them: the roof over their heads without which they cannot live.

The purpose of landlord and tenant is to moderate but not remove that essential inequality.

If it’s right that there is a limit to what the law can deliver, it follows that the sort of changes we should look for aren’t only laws to help tenants lawyers defend this or that case. What we need also are reforms which change the balance of power outside court.

Here are two examples I’ve been considering:

  • Simplification

Every housing lawyer will be familiar with the basic point that, when it comes to possession, a tenant’s rights and a landlord’s obligations depend entirely on what form of tenure applies. In the simplest example: most private landlord evict their tenants pursuant to section 21 of the Housing Act 1988, which means special notices, and the accelerated possession procedure. While most housing associations rely on section 8, meaning different notices, and the ordinary possession procedure.

The problem is the multiplication of tenures. There are different procedures to evict secure tenants, flexible tenants, introductory tenants, demoted tenants, student tenants, asylum seekers, tenants holding a property as a term of their employment, tenants of homeless housing, property guardians, and so on.

This multiplication of tenures means that it is almost impossible for the ordinary, well-informed tenant even with access to such resources as the Shelter website or Nearly Legal to say with any conviction whether – on the receipt of a notice telling them to leave – they have to go. Maybe they leave prematurely; maybe they employ a lawyer. But that will be at a cost to them (unless they are eligible for legal aid) which will be relatively greater to them than it will to the average landlord.

We should be arguing it for a massive simplification of housing law. That process could help tenants as much as any modest tweak to this or housing law.

  • Settlement / advisers

One of the things we have seen under Covid is that formal legal evictions came to an end. But more than 100,000 people were encouraged or compelled out of their homes. If we do abolish section 21, landlords won’t be able to evict at will, and tenants will stay in properties for longer. Where does that leave us in the situation where both sides have accrued rights: on the tenant’s side, disrepair or an unpaid deposit maybe, on the landlord’s side unpaid rent?

Often, we spend out time at court, negotiating very complex orders whose practical effect is that both sides “drop hands”. The disrepair extinguishes the debt; the tenant leaves – perhaps not as fast as the landlord would like.

One thing I’ve been mulling over is what happens in employment law when both sides negotiate a departure (a dismissal) with compensation. The deal isn’t binding unless the employee gets a solicitor or a union to sign it off. Usually the employer pays for that advice.

The compromise is reached before, and instead of litigation.

Should we lobby for something similar in housing law? It would give tenants a right to advice. Not necessarily to sue or counterclaim, but to ensure that everything is done right.

Such a reform would create a space not just for lawyers but also for tenants’ unions and tenants’ associations, social movements that are our natural allies.

To conclude: housing law has changed as much in the past year as it has ever changed. We can’t just take a defensive stance of resisting every change the government proposes. We need to have a vision of our own for housing law.

(If you’re interested in the ideas set out in this piece, I will be speaking at a meeting of the campaign group SHAC on Monday. Link here. You can also buy my book, Jobs and Homes, which was published by Legal Action group this spring and is available here or here).

Resisting Forstater and the push back against trans rights

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Reaction to the decision of the Employment Appeal Tribunal (“EAT”) following Maya Forstater’s successful appeal has followed predictable lines. Opponents of trans rights have welcomed the decision, while on trans social media the most common reactions have been ones of anger and resignation.

The judgment deserves to be read more carefully than such immediate thoughts allow. It combines long pages of careful analysis with a single passage of carelessness. What I’ll try and do in this piece is (1) explain what the main part of the Forstater decision says and how it relates to the broader politics of “free speech”, (2) show how the judge dealt – in passing – with the more general issue of trans rights in equality law, and (3) explain why although the judge’s comments are likely to give encouragement to trans exclusionary positions, they are unlikely to settle over time as the main understanding of the law.

(1) Forstater and free speech

Forstater is a writer on sustainable development. She worked as contractor of CGD Europe, a US-based thinktank. Her contract was terminated. She says this was because of posts she had made referring to trans women as “men”.

At the first hearing, an Employment Judge had to consider whether Forstater’s beliefs were protected under the Equality Act. The Judge noted that, on her own account, Forstater held nuanced opinions. But she regarded people’s birth gender as immutable, and the decision as to what pronouns, etc, to use as her choice alone (“No one has the right to compel others to make statements they do not believe”). The Judge was astonished that she refused to recognise a trans woman as a woman, even in circumstances where that woman had gone through the lengthy and court-like process of acquiring a Gender Recognition Certificate. The Judge concluded that Forstater’s beliefs were “absolutist”, and should not be treated as protected beliefs for the purpose of the Equality Act.

This decision has now been reversed on appeal, which the Appeal Tribunal finding that beliefs such as Forstater’s could be protected under the Act, and it would be unlawful to discriminate against her on account of them.

In the UK, there is no general rule permitting absolute free speech in the workplace. When an employee is dismissed and seeks to challenge their dismissal in a Tribunal, the two main routes open to them are to say they were unfairly dismissed, or that they were dismissed because of a characteristic which is protected under the Equality Act, in other words, their race or gender, religion., etc.

A belief can be a protected characteristic under the Act. But which beliefs should qualify for protection is not simple. Everyone accepts that religions should qualify for protection; a Sikh should not be dismissed because of their religion. As for which other beliefs should qualify, this is a matter of caselaw (i.e. decisions made by judges not parliament).

Judges have settled on the following tests: a belief must be genuinely held. It must be a belief and not a mere viewpoint. It must be a belief as to a weighty and substantial aspect of human life and behaviour. It must attain a certain level of cogency and seriousness. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

This last part of the test (referred to in the judgment as “Grainger V”) explains the different decisions in Forstater’s case. If a worker’s belief is that they are entitled to violate other people’s dignity at will, it would be strange to shield that worker from dismissal. In protecting such a worker, the courts would just be ensuring that their colleagues had to endure upsetting speech.

The purpose of the decision of the EAT is to maintain the tests set out above but to re-balance them in the direction of free speech. This, the Appeal Tribunal achieves this by drawing on two provisions of the European Court of Human Rights, article 10 which protects free speech, even for opinions which offend, shock or disturb, and article 17 which removes protection from any person who performs “any act aimed at the destruction of any of the rights and freedoms” of others.

The Appeal Tribunal ruled article 17 provided the “benchmark” in free speech cases. It follows that all opinions should be protected by free speech rules save for “the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence”. Maya Forstater’s opinions were not in this category; therefore she is protected.

An optimist would say that in drawing the line where he did, at the boundary-point of fascism, the judge was cutting with the grain of old positions in the free speech debate. He was expanding the category of opinions which require protection, even where those opinion are likely to annoy and offend but fall short of calling for the general silencing of everyone else. To that extent, the judgment takes a stance as old as Milton with his belief that it is legitimate only “to suppresse the suppressors themselves”.

A pessimist would reply that the judgment also fits just as well with the growing use on the centre-right of “free speech” as a wedge issue, to unite different kids of right-wing politics and to split apart a left which is divided along culture lines. Two of the most popular tweets in the judges’ support have come from Paul Embery and Douglas Murray. They take it as a sign that the culture wars are turning in their preferred direction.

And of course, there are other processes also pointing that way, not least the proposed Higher Education (Freedom of Speech) Bill.

In deciding the case as it did, the Appeal Tribunal did not set Forstater on a clear course for victory. It remains open to her employer to argue that it did not dismiss her for what she thought but for what she said. There are many opinions which are capable of protecting an employee, but which might not protect them in practice. Think for example of the belief that man-made climate change is an urgent threat to the survival of the world. This is a legitimate opinion and one capable of protection from discrimination. But if an employee of an oil company was to start tweeting that her employer was burning the planet, and the employer dismissed her, the business would say that they were not seeking to restrict their employee’s opinion simply guarding the reputation of their brand.

To say that an opinion is capable of protection is not guarantee that its holders will win their discrimination cases, it is merely to create the conditions so that there is a genuine issue to be tried and one capable of going either way.

(2) Forstater and the status of trans people in equality law

Almost all of the judgment is cogent and if, unwelcome to trans people, it was not unexpected. The most important problem with it is something the Judge addressed in passing. At page 48 of the decision in a footnote, the judge remarks that trans opinions, too, are protected in online debate, by section 7(2) of the Equality Act.

The Act provides that a person has the protected characteristic of gender reassignment if they are proposing to undergo, is undergoing or has undergone “a process … for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

Until now, lawyers have always understood that any trans person goes through a process (or several processes): at one point they are perceived as having a certain sex, and at another point they are perceived as having a different sex/no sex/many sexes, etc. And the journey undergone by trans people to be reassigned might be any sort of informal process, eg applying to your employer to change your work ID, etc etc.

At the top of the judgment, the judge wrote, that although the protected characteristic of gender reassignment under s.7, EqA “would be likely to apply only to a proportion of trans persons…” suggesting that, in his opinion, section 7 does not apply to most trans people, and only applies to people applying for a Gender Recognition Certificate.

If other judges are to conclude that these offhand remarks are binding then the result would be a step backwards for trans lives, stripping away rights which many civil courts have until now applied to all trans people without question.

Many people have read this part of the decision and been troubled by it. What I want to argue here is that even if anti-trans advocates start quoting the President of the EAT, and arguing that he is right and that trans people have or should have no protection under the Act, probably, their arguments will lose.

(3) Forstater and the future of trans rights

Therefore, in the third and final section of the piece, I want to set out why, I still think not merely that the President of the EAT is misguided, but why it should be relatively easy to persuade other judges that he was wrong.

(i) “Dicta”

The President of the EAT is an important judge in the courts and tribunal system, but even his authority is limited. The sentence, “Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons…” forms no part of his actual decision, and was wholly irrelevant to the case he had to decide, which was simply about how far the Equality Act goes to protect trans exclusionary opinions. As lawyers, when a judge comments on something outside the main body of the case we call this “obiter dicta” and it is not binding on lower courts, no matter how senior the judge.

(ii) Contradicts the reasons given when passing the bill

This issue was discussed in Parliament before the bill was passed and ministers gave the clearest possible account of who the bill was intended to protect. The Solicitor-General was asked who section 7 was meant to cover.

Lynne Featherstone MP asked, “I have constituents who are indeterminate and would not necessarily be identified as gender reassigned or as one sex or the other. They are somewhere in between and unidentifiable physically. I want to make sure that those people are protected. They may not even be on a journey; they may just be indeterminate in their gender identity, so there is no reassignment at all. Would that be covered?”

The Solicitor General responded, “First, the medical definition in subsection (1)(a) is undoubtedly covered by our clause. Secondly, a person living permanently in the gender role other than their birth sex is covered. Thirdly, somebody who has received gender recognition would obviously be covered, and fourthly, somebody “who has a gender identity that is different from that expected of a person of their recorded natal sex”, is covered too. Where is the deficiency in our clause? Each and every one of those cases is covered, and I have said that at least 15 times.”

Parliamentary language would not have more weight in court than a reasoned decision by the President of the EAT; it does have more weight than mere off-the-cuff remarks by them.

(iii) unlike the President, other judges have had to deal with this issue

For example, in Taylor v Jaguar, the Employment Tribunal addressed this issue and found that non-binary people were covered by the Act (see section 173 here). The decision of an Employment Judge at first instance would not normally have more weight in court than a reasoned decision by the President of the EAT; but it does have more weight than mere off-the-cuff remarks by the President.

(iv) If you read the section clearly, it is plain that it intended to cover most/all trans people

If the point of section 7 was, as the President seems to have guessed, to protect people in or contemplating an application to the Gender Recognition Panel (GRP), the drafters would have used different language.

At no point does section 7 refer to that panel. The section could have done, and didn’t.

The section does not even use language which could refer to the panel only. If you look again at the words, “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex,” there are three clear signs that the drafters intended to look beyond the Panel.

First, they spoke of “a” process, not “the” process. IE suggesting they believed that more than one kind of process was available.

Second, they referred to “part of a process”, IE suggesting that to satisfy the definition of section 7 you did not need to have to be considering even a whole process, but only part of a process. (EG approaching a doctor to ask for a diagnosis of gender dysphoria, which might in turn be used for any different kind of formal or informal process later).

Third, the section refers to “other attributes” of sex than the physiological – eg new clothes, or changing other visible markers of sex or gender, which is a much broader process than approaching the GRP for a certificate.

(These last two points were accepted by the Tribunal in Taylor v Jaguar)

(v) The President’s “solution” to section 7 was over-complicated, artificial and simply makes no sense of how the Equality Act works, or is intended to work

The judge grasped that interpreting section in the way that seemed obvious to him would have negative consequences for trans rights.

The judge therefore wrote in a footnote that if section 7 was understood in the narrow way he assumed it had to be such an understanding should not concern trans people since “A trans person could potentially bring a claim for harassment related to gender reassignment (where the definition under s.7(2) is satisfied), sex (see e.g. P v S and Cornwall County Council [1996] ICR 795 at paras 17 to 22), disability based on the conditions of Gender Dysphoria or Gender Identity Disorder (see EHRC Code at para 2.28), or even a philosophical belief that gender identity is paramount and that a trans woman is woman”

The judge insisted that trans people could not lose out from his judgment for if it protected anti-trans opinions then it must also protect pro-trans opinions.

That would true but misses the point. In designating that trans people have no rights under the Equality Act save for the small minority who have applied for a Gender Recognition Certificate, the Appeal Tribunal would be encouraging other judges to hold that most of the time most trans people have no rights. It would follow that a non-binary person asking their employer to permit a gender-neutral uniform has no right to ask. A landlord could evict a trans tenant who was just living silently in their home.

I doubt many people would understand the law as the Judge tried to explain it – i.e. that right-wing, even far-right, activists have a protected status in the law (so long as they are not actual fascists) but most of the time, in most circumstances, most trans people don’t.

Moreover, some of the example he gives of when trans people would be protected are patronising and bear no real reality to trans lives. For example, his suggestion that a trans person suffering GID could label themselves disabled and demand protection on that basis, would protect some trans people. But if you ask most trans people “do you consider yourself disabled?” the vast majority would answer – rightly – of course I don’t.

They want, and the law gives them, protection as trans people.

All this mess comes, ironically, from an effort by the Judge to explain that trans rights were protected and that his decision did nothing to infringe them.

If that was his intention then a much simpler more practical way to do that would have been either to keep silent, or to go along with the ordinary interpretation of section 7, one which (as I indicate above) was, after all, what ministers said when explaining the Act.

In conclusion, this was some loose indeed careless wording by a senior judge. It is most likely that other judges will simply ignore it. If they don’t, and this becomes a live argument, I hope that by collecting together in one place the above points this post will be of assistance to other lawyers and to trans people fighting for equality in their own lives.

No Platform in the 1930s and 1940s

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Thanks to the work of the anti-fascist historian Evan Smith, many socialists are aware that the anti-fascist tactic of “No Platform” was first written down at the start of the 1970s, and had become by April 1974 the policy of the National Union of Students. But 1974 can hardly be the start of the story. There had been anti-fascists in Britain since Ethel Carnie Holdsworth and Ellen Wilkinson in the early 1920s. How had anti-fascist in the 1930s or 1940s responded to the criticism that, by confronting the far-right, they were damaging free speech?

In the 1930s, anti-fascist protests were largely restricted to the political left. At Olympia in 1934, socialists, Communists and others forged tickets to a fascist rally, managed to get in, and heckled the fascist leader Oswald Mosley from inside his meeting. As the anti-fascists heckled, Mosley stopped speaking, and his supporters shone spotlights on the hecklers so that they could be beaten. In the meeting’s aftermath, Mosley was widely denounced in the public press, and his wealthiest domestic backers abandoned him. Two years later, at the Battle of Cable Street, a crowd of 150,000 socialists and British Jews, summoned onto the streets by East End Communists, confronted Mosley and the police and prevented him from marching through the East End.

 The conflict between left and right was violent; with fascists boasting of the beatings they inflicted on their opponents, and the left being unafraid of using force in its defence. Unsurprisingly therefore, when you read fascist accounts of these struggles, the references to free speech are few and shallow. In February 1933, Oswald Mosley told readers of The Blackshirt that anti-fascist protests meant that “we have reached a point in this country in which free speech is a thing of the past.” This was stated briefly, in a matter-of-fact manner and with little suggestion of regret. The real purpose of invoking free speech was to advertise the fact that a “Fascist Defence Force has been organised to protect free speech”. It had already “often met and defeated ‘Red’ violence.” Mosley had in fact been operating a private militia for two years by this point, explaining in a message to its members that they would be “an iron core in [our] organisation around which every element for the preservation of England will rally when a crisis … comes.”

On the other side of the barricades, the discussion of free speech was more intense. Anti-fascists argued that by standing up against the far right they were creating the conditions for more speech, not less. In 1937, the poet Nancy Cunard wrote to 148 of her fellow writers asking them their opinion of the Spanish Civil War. A victory for fascism, the poet W. H. Auden argued, “would create an atmosphere in which the creative artist and all who care for justice, liberty and culture would find it impossible to work.” “Civilisation,” the novelist Storm Jamieson maintained, is incompatible with fascism, “this doctrine which exalts violence and uses incendiary bombs to fight ideas.” “Two things make the future real,” the journalist John Langdon-Davies wrote, “the artist’s imagination and the worker’s hope. Fascism destroys both.” Being for free speech, each of these writers insisted, meant opposing those who would turn Europe into a jail.

The dilemmas of repression

From 1939, Britain was at war with Germany. Mosley’s main activity was now to campaign for peace with the two fascist states, from which he had received (as civil servants had identified) tens of thousands of pounds of financial subsidy. On 9 April 1940, Britain’s ally Norway was invaded by the German army. On the same day Vidkun Quisling the leader of the Nasjonal Samling Party proclaimed himself prime minister. Ministers concluded that Mosley was the prime candidate to play the role of Quisling in Britain. Accordingly, from 22 May 1940, the authorities began to intern prominent fascists under Defence Regulation 18B. More than 750 supporters of Oswald Mosley were eventually detained. Almost all the leading fascists were held in custody.

Responding to Mosley’s internment was not a straightforward question for the left. Any moves to oppose it would have been interpreted as an alliance between two groups of extremists. At a time when the USSR and Nazi Germany were co-operating in a non-aggression pact, any such move would have been political suicide. But if they supported internment, they were giving their backing to practices of detention without trial, with every possibility that such weapons would be used against them next. The Daily Worker was banned in early 1941; the Cabinet discussed extending interment to Communists – Winston Churchill supported the move.

The Communist Party determined to bluff the crisis out, supporting the internment of the fascists and then (i.e. after Hitler’s declaration of war on the Soviet Union), positioning itself as the keenest exponent of the continued internment of Mosley’s followers. In 1943, the barrister and Communist fellow-traveller, D. N. Pritt, drafted legislation to make fascism unlawful. It would have created six offences: the advocacy of fascist doctrines, the veneration of fascist leaders whether dead or alive, the display of fascist symbols, the advocacy of racial hatred, printing of literature for any of these purposes, or the membership of a proscribed party.

In November 1943, Oswald Mosley was released. Reports gathered by the Home Office showed indignation storming across the country. The Communist Party organised a series of demonstrations against his release, especially in factories engaged in war production.

Champions of free expression often argue that measures to limit speech are counterproductive, that they only serve to radicalise the unwanted minority, sending it underground, encouraging its supporters into ever more violent acts. Others argue that when the state intervenes against a party it can destroy the latter’s capacity to organise and deal it a shattering blow from which that movement never recovers.

The psychological damage that internment caused to British fascists illustrates both of these reactions at once. Plenty of 1930s fascists simply gave up politics. Nellie Driver, who had led the BUF in Nelson in Lancashire, swapped fascism for Catholicism. Alec Miles, one of the BUF’s industrial organisers, left the movement and reinvented himself as a left-Labour councillor in Westminster. The novelist Henry Williamson begged his fellow fascists to renounce politics. “[Mosley] was news,” Williamson wrote, “but bad news.”. Others, meanwhile, saw themselves as having been unjustly martyred and used their anger at repression to justify increased activity. James Larratt Battersby a Stockport factory-owner became convinced that Hitler had been a “divine spirit” sent to free the world of evil. Around a specially built altar, he and around a dozen friends in a fascist commune held midnight services praying to God and to Hitler his messenger.

Kicking over the platforms

After the war ended, various attempts were made to revive the British Union of Fascists. These efforts reached their peak in summer 1947, with a succession of different fascist groups holding street meetings at up to 20 different locations on Saturdays. Following the bomb attack on the King David Hotel, and the killing of two British sergeants at Netanya by people calling for the creation of an ethnic Jewish state in Israel, there were large -Jewish riots in August 1947, in Liverpool, Eccles, Salford and Manchester. These anti-Jewish riots gave Mosely’s supporters a national profile. The Daily Mail reported the fascists’ weekly meetings under the regular title: “The Battle of Ridley Road”. Mosley’s supporters across London were required to attend these meetings, which for a period of two months had a regular audience of around two to three thousand people.

Different left-wing and anti-racist groups were involved in the struggle against fascism in the 1940s, including members of the Communist and Labour Parties, Commonwealth, and supporters of the Association of Jewish Ex-Servicemen. Anti-fascist journalists published articles warning of the growing strength of Mosley’s movement. In recent years, the best known anti-fascist organisation from this period has been the 43 Group, a body of around five hundred young Jewish men and women, many of whom had recently served the British army during the war.

The 43 Group had its own newspaper, On Guard, which sought to both report on events in Britain, and give coverage to anti-fascists elsewhere. The singer Paul Roberson gave an interview. Other articles criticised the first sitting of the House Un-American Activities Committee, recognising the threat it posed to free speech.

Much of what the 43 Group did was the sort of campaigning that anti-fascist groups have done in Britain and elsewhere both before and since. Spies were sent to infiltrate fascist meetings. Speakers were teased and heckled (“Hello, Clark Gable … Take his photograph. Mussolini used to stand like that”). If members of the 43 Group could defeat Mosley’s supporters peacefully – for example, by claiming a local speaker’s corner before the fascists did, they would.

The distinctive tactic of the 43 Group, in 1946 and 1947, was to form its members into what was termed a flying wedge, a group of about fifteen people who would charge a fascist speaking platform, knocking it over and sending the speaker flying.

One member of the 43 Group, Morris Beckman, conveys the extent to which their activities focussed narrowly on turning over speaker’s platforms. By summer 1946, “Between six and ten fascist meetings per week were being attacked by the Group … A rough estimate showed that one third were ended by the speakers’ platform being knocked over, another third were closed down by the police to keep the peace, and the remaining third or so continue to the finish due to too heavy a presence of police or stewards.”

This was a time before television, when most people would get their news from the radio, the press or cinema. Entry to these media was closed off to the far right, as indeed to the far left and to religious minorities, but particularly to the right because this was after a war in which hundreds of thousands of British people had died fighting fascism. Beneath the public world of high political debate, there was a busy tradition of informal discussion, with dozens of town and urban markets in which people would stand on a wooden box and speak.

While no-one had yet formulated the phrase “no platform” nor would for twenty years, the day-to-day political work of the 43 Group was a practical application of that tactic. It was a narrow and specific method, limited to fascists. It was intelligence-driven: the 43 Group had infiltrators within the circles of Oswald Mosley’s most senior supporters; and relied on them to provide credible accounts of when a fascist assembly was due to start.

It was based in certain contexts: not the universities (although these have been much more important in recent times), nor elections, nor new media, but an older forum – street meetings. When thinking of “platforms”, Beckman and his comrades meant them literally. The members of the 43 Group wanted to close off any possible means by which fascism might win new recruits. The tactic emerged in a Britain where, if it was possible to turn over twenty platforms in one afternoon, then Mosley’s route to his audience would be closed off entirely.

The anti-fascists of the 1930s would look back on Cable Street, and invoke its name. But it was in the late 1940s, for the first time in British history, that anti-fascists could seriously envisage a future where no fascists were permitted to speak – none, anywhere.

(If you’ve enjoyed this piece, my own next book, No Free Speech for Fascists: Exploring ‘No Platform’ in History, Law and Politics, is published by Routledge in June. It can be ordered here.)

(Tickets for the book-launch – tonight – with Evan Smith and Kate Doyle Griffiths, can be ordered here).

Why can’t everyone speak freely?

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Douglas Murray – he’s allowed to speak – are you?

Last summer, the United Kingdom witnessed a sustained attempt to silence one of our most eloquent political voices. The attach was directed not at a speaker from the centre- or far-right, but at am intellectual associated with the left. The Cambridge academic and author of a superb history of the British Empire and its critics, Priyamvada Gopal, was accused of having employed hate speech and, after hundreds of complaints, her Twitter account was briefly suspended. The story began on 23 June 2020, when Gopal had posted on Twitter the following message: “I’ll say it again. White Lives Don’t Matter. As white lives.” The day before, supporters of Burnley Football Club had paid for an aircraft to fly a banner above their ground as their team played: “White Lives Matter Burnley”. (The club distanced itself from the stunt and banned its organiser from the club for life).

Both American and British politics had been polarised since the death of George Floyd, with advocates of racial equality complaining that the police were repeatedly killing young black men and women, while their opponents insisted that it was in principle wrong – and on occasion hateful – to demand that the state treat black people no worse than they treated whites.

Gopal’s tweet was intended to summarise in just a few words a point she has made repeatedly elsewhere, including in a comment piece for the Guardian. In her words: “White lives already matter more than others so to keep proclaiming they matter is to add excess value to them, tilting us dangerously into white supremacy. This doesn’t mean that all white people in western societies are materially well-off or don’t experience hardship, but that they don’t do so by virtue of the fact that they are white. Black lives remain undervalued and in order for us to get to the desirable point where all lives (really do) matter, they must first achieve parity by mattering. It’s not really that hard to understand unless you choose not to.”

Some 15,000 people responded to Gopal’s message on Twitter; most of them with hostile comments of their own. I’ll say that again: some 15,000 people responded… Her employer and the police were inundated with demands her sacking and arrest. Since Gopal’s original post had been by no means unpleasant, it was rapidly supplanted by further fake tweets, purporting to have been written by her, including one that her readers should “carry out a resolute offensive against the whites, break their resistance, eliminate them.”

Some but by no means all of the messages directed against Gopal were ultimately taken down by Twitter. After that, Gopal’s harassers took to emailing her directly at her university address. Gopal herself therefore took the unusual step of posting more than ninety of those emails online, including repeated threats to rape or murder her: “You will be the first to perish…” “Go and neck yourself before someone else does…” “We know where you live, we know your way to work…” And there were dozens and dozens more messages of this sort.

Right-wing journalist Douglas Murray (pictured) attacked Gopal. He attacked her for complaining about having received death threats (“a renowned cry-bully move”). What was she supposed to do, take those threats in silence or indeed welcome them meekly, like the grateful natives of British imperialist fantasy?

Murray called Gopal a “racist” for standing up to bigotry. And, while not directly calling for her dismissal from the University, he made it clear that such an act would be wholly appropriate: “Surely nobody who acts in such a deranged and deliberately provocative manner could possibly have any role at an institution of higher learning?

The Daily Mail agreed, with its journalist Amanda Platell claiming that Gopal “supports and endorses the subjugation and persecution of white people” and that she was “incit[ing] an aggressive and potentially violent race war”. Faced with the threat of libel proceedings and belatedly grasping the very high likelihood that it would lose, the Mail apologised, and paid Gopal £25,000 compensation.

Over the past five years, it has been more common for anti-racist lecturers to be dismissed by their university than protected. We might compare Gopal to the American political scientist George Ciccariello-Maher, who, annoyed by the offensive claim that the mere presence of black people in that country amounted to an actual or imminent “white genocide”, decided to expose the conspiracy theory by pretending to take at face value, and tweeted in December 2016, “All I want for Christmas is white genocide.” On this occasion, Drexel University sided with the critics, calling the professor “utterly reprehensible” and “deeply disturbing”, and placing him on administrative leave. After multiple death threats and threats to attack his family, Ciccariello-Maher resigned his university post.

There were two distinct ways in which Gopal and Ciccariello-Maher might have defended themselves. In the first, they might have argued that the accusations against them of racism were false. They were speaking against hate speech, and the accusations against them of bigotry were manifestly bogus. The difficulty with this approach is that it requires an adjudicator motivated by good faith and with a minimal political intelligence so that they are capable of distinguishing racism from anti-racism. As the case of these two universities makes clear, that is a considerable assumption. Many administrators concede in the face of right-wing social media trolls.

In the second approach, Gopal and Ciccariello-Maher might have argued that there is such a thing as free speech, and that this is a demand which should (in theory) protect the left as well as it protects the right, and that it ought to protect left-wing teachers against hostile outside critics demanding their removal from their posts. Yet neither used “free speech” in that way and it is worth thinking though why not. The simplest reason is that all participants in contemporary political debate have become used to a highly ideological conception of free speech, so that when genuine free-speech crises occur outside that context, almost no-one in politics (on either the left and right) is capable of recognising them as such.

Let me give another example: the history of the post-fascist British far right began effectively, in 2009, when a homecoming march by British soldiers was disrupted by a group of political Muslims in Luton seeking, in their own way, to highlight the cruelty of the Iraq war. Waving placards and denouncing soldiers, they antagonised Luton residents to such an extent that a movement of far-right protesters, the English Defence League, was born. How would Tommy Robinson, the leader of the EDL have responded if one of his supporters had approached and said that the principle of free expression is universal and protects all speech, even a (rhetorical) attack on British soldiers?

To ask the question is to answer it. Of course, any such argument would have been rejected with derision. Of course, free speech is for whites, and not for Muslims. And, in this part of his politics, Robinson was no extremist. Rather he was in line with a policy consensus that stretches from the far right to the large majority of British liberals at the centre of politics and to our state, which in programmes such as Prevent polices Muslim speech and threatens with imprisonment those who test the boundaries of what can be said.

The example of Islamist speech illustrates what is in fact a general phenomenon. In contemporary discourse, we have all taught ourselves to understand that free speech applies to certain situations but not to others. It applies to people seeking a platform to speak within a university, i.e. coming from outside. It does not apply to anyone (whether a student or a lecturer) who is already there. It applies to the leaders of right-wing parties who want to employ social media to advance their positions without having to deal with the problem of anyone arguing back against them. It applies to monologues but not to dialogues. It applies to the instigators of political arguments, and not to those who disagree with them, who criticise, or who heckle.

There is seemingly no space within our “free speech” debates to recognise that the people criticising hate speech are themselves speaking, or that any serious application of a right to free expression must protect them too. “Free speech” applies only to the white racist and never to their anti-racist critic. And, because we have all drifted into this shared assumption that only one person’s speech rights can be protected at a time, critics of racism or other forms of bigotry unsurprisingly tend to see “free speech” as a politics which is incapable of shielding them.

There is a longer history to these conflicts. For centuries, free speech was a cause associated with the left. Centre-right discourse around free speech changed quickly, in Britain and America, from the 1960s onwards (in the aftermath of the Lady Chatterley’s Lover, Chicago 7 and Oz trials). After many years of seeing free speech as of limited and partial value, something which the right was obliged to accomodate to but without enthusiasm, conservatives began to use free speech discourse actively. Then, from 1989-90 onwards, the right began to treat free speech as an indicator of which side you belonged to: George Bush supported free speech, while “politically correct” students were accused of abandoning constitutional principles. If the students demanded the right to express an opinion, then by definition their demands were not really “free speech” claims, but something else and unworthy of protection.

Since 2016, there has been a further shift in our shared understanding of free speech, so that it has become a value around which conservative and those further to their right can co-operate. Our ordinary “free speech” debate assumes something like the scenario with which this book opened. The body issuing the invitation is a part of the mainstream right: a group of college Republicans inviting Milo or someone further to their right – even a fascist. Everyone has become so familiar to that scenario that we forget that free speech might be employed in other contexts: in defence of a worker’s employment, or by the left as well as the right.

(If you’ve enjoyed this piece, my own next book, No Free Speech for Fascists: Exploring ‘No Platform’ in History, Law and Politics, is published by Routledge in June. It can be ordered here. Tickets for the book-launch – with Evan Smith and Kate Doyle Griffiths – can be ordered here).

No Platform isn’t an attack on free speech

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Listen to the reasons the government has given for introducing its Higher Education (Freedom of Speech) Bill, and a clear picture emerges. Universities have failed to protect free speech; the greatest threat is the danger of left-wing students no-platforming conservatives. In the words of the consultation document for the bill: “There is a growing atmosphere on campuses that is antithetical to constructive debate … This can sometimes translate into examples of no platforming of speakers”.

In the same document, Secretary of State for Education Gavin Williamson acknowledged that hardly any visiting speakers have actually been banned, but insisted that “even one no-platforming incident is too many.”

Here, I’ll explain where no platform comes from, and show that it is a better, more principled theory, than the government’s alternative.

As the historian Evan Smith has shown the phrase can be traced back to a front-page article in a magazine, Red Mole, published in 1972, “No Platform for racists”. The author, John Clayton, was worried by the growth of the National Front. He wrote: “the pernicious activity of the extreme right must be knocked on the head”.

In 1974, the National Union of Students passed a motion “recognis[ing] the need to refuse any assistance (financial or otherwise) to openly racist or fascist organisations or societ[ies] (e.g. Monday Club, National Front, Action Party/Union Movement, National Democratic Party) and to deny them a platform.” No Platform has been NUS policy ever since.

The motion was directed at student unions. Faced with the prospect of fascist speakers on campus, it rejected the common-sense tactic of students simply voting with their feet not to attend. It was adopted in the early 1970s when protest was widespread. Just as workers were fighting for control of their workplaces, so were students fighting for control over syllabuses, and to democratise the relationship between teachers and taught. They believed they had a right to decide which guest speakers were invited.

The list of groups prohibited under the motion contained three clear fascist parties (Mosley’s Union Movement, the National Front, and the National Democratic Party), and only one that was not. The Monday Club’s activities were causing increasing disquiet to its parent Conservative Party. Its member had held rallies against immigration which were taken over by the Front. Others boated to the press of their admiration for Mein Kampf. Most student radicals believed the Monday Club was in a de facto alliance with the NF.

The National Union of Students was not saying that all racist speech should be prohibited. In a society where racism was as endemic as 1970s Britain, when it was common in newspaper and TV programmes, how could students have removed all racism? Rather they were trying to prevent speech by fascists or those allied with fascism.

Since the 1970s, the meaning of the term “no platform” has been challenged: there have been instances of the tactic being applied to groups other than fascists. In the 1980s, for example, feminists debated whether anti-abortion campaigns should be no-platformed (when I was a student in the early 1990s, a broad activist consensus held that that would go too far).

The exact point at which the line is drawn is always changing, not least because the right changes. But every time the idea swells beyond its original use, there are always other radicals arguing that no, this tactic is only appropriate to fascists.

The reason why the focus of “no platform” is always being brought back to that starting point is because fascism is a different sort of enemy to other forms of right-wing politics. Under Brexit and Covid right-wing politicians may dream of a more authoritarian form of “managed democracy”, but the limits imposed of their own politics thwart them. The fascist groups, by contrast, really are planning a one-party state in which all other views are banned.

Within the range of “no platform” politics there is a second area of contest. No platform was meant to be a form of do-it-yourself politics. But in less heady moments than the early 1970s, there is always a tendency to look for shortcuts, to begin a campaign against one or another figure by demanding that university administrators – or social media platforms – silence them. Such top-down politics, I’d argue, isn’t no platform but something weaker and worse.

At the core of No Platform, is a necessary and simple idea – that students should be entitled to draw a line and refuse a platform to groups that cross it. It’s an idea, ironically, that even the Conservatives don’t contest, or at least not when it comes to fascists.

Think, for example of the trouble Education Minister Michelle Donelan got into after she went on Radio 4 last month and insisted that under her Bill Holocaust Deniers would be permitted to speak. “A lot of the things we would be standing up for would be hugely offensive, would be hugely hurtful,” she said. Ever since then, Donelan has been telling everyone who will listen that no, she didn’t mean what she appeared to say. And yes, of course, under any healthy system Holocaust Deniers would be silenced.

Unfortunately, she is simply wrong about the impact of her own bill. You can’t constitutionalise free speech in universities, make it an overriding duty – without at the same time giving opportunities to the far right.

The government’s ideological view of the world threatens to trap us all in a false dilemma. Free speech is a virtue – but to achieve it, we must give opportunities to fascists and Holocaust Deniers even if hardly anyone wants to hear from them.

The way out is to grasp the insight on which no platform was based. The generation who persuaded the NUS to adopt no platform didn’t want to see less speech, they wanted to see more of it. They had just lived through the Oz trial (the UK counterpart to the trial of the Chicago 7), and hated the idea of letting the government or courts decide who got to speak.

The alternative they grasped is that it is possible to demand both free speech on campuses and a specific exception limited only to fascists. That was the principled position in the early 1970s; fifty years later it is still the best answer.

(If you’ve enjoyed this piece, my own next book, No Free Speech for Fascists: Exploring ‘No Platform’ in History, Law and Politics, is published by Routledge in June. It can be ordered here. Tickets for the book-launch – with Evan Smith and Kate Doyle Griffiths – can be ordered here).