The HE Bill – a Holocaust Denier’s Charter

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Pity poor Michelle Donelan. In mid-May the education minister went on Radio 4 to justify the Higher Education (Freedom of Speech) Bill. Asked about the Bill, and whether it would require universities to respect the free speech rights of Holocaust Deniers, she said that it would. “A lot of the things we would be standing up for would be hugely offensive, would be hugely hurtful,” she acknowledged.

Boris Johnson’s spokesman insisted that Donelan had misspoken: “Holocaust denial is not something that the government would ever accept.”

Since then, Donelan has been sent out repeatedly to explain that the account she had given first time round was wrong. The Bill will not require universities to accept speech that contravenes the Equality Act. “We can hold and articulate views which are objectionable to others as long as they don’t cross the threshold of hate speech.”

For fifty years, there has been a conflict in universities over whether far-right speakers should be allowed a platform. The starting-point is a motion passed by the National Union of Students as long ago as April 1974, and periodically reaffirmed since, which encouraged universities to refuse platforms to “openly racist or fascist organisations or societies”. The main (but not the only) target of the phrase “racist or fascist organisations” was the National Front.

Ever since 1974, radicals have continued to debate among themselves how far no platform can be extended, while government ministers have tried to keep this exclusion as narrow as possible. In the early 2000s, I was an official of the university lecturers’ unions NATFHE. The campus left insisted then that “hate speech” was unlawful harassment contrary to the Race Relations Act (today the Equality Act). Ministers disliked that argument, and wanted to protect the free speech of speakers who were on the right, maybe even the far right, but not fascists. At that stage, they tried to hold the line through non-binding guidance.

The whole point of Donelan’s bill is to go beyond this previous compromise in which universities were allowed to set the limits themselves. It insists that the Equality Act ceases to apply when it comes to the question of free speech. The bill creates a new and absolute “Duty to take steps to secure freedom of speech”. The very first clause of the bill 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.” You will notice the word “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 and when the Bill passes.

Under the new law, universities are only required to uphold free speech so far as is “reasonably practicable”. But this provides no wriggle-room. For practicable is a concept we repeatedly encounter in different areas of the law. It means what it says, that a university might consider issue of practicability in deciding when or how to put on an unwelcome event. They might not have to host it if contacted for the first time an hour before the event is due to start. What a university can no longer do is refuse to host that speaker at all.

The government could have put into the legislation a “saving clause”, words saying clearly that the Equality Act still applies – they have chosen not to do so.

The bill allows anyone to sue a university for damages, an injunction or a declaration in circumstances where they believe that their free speech has been limited. The people who will interpret the bill are therefore not ministers but judges. And they are most likely to say that the Bill has a clear purpose. It constitutionalises free speech, making it a defining purpose of universities. Students may well ask, what about the ban on hate speech? The answer will come back: I’m sorry, it doesn’t apply anymore.

Why then won’t the government just come forward and admit, as Donelan did when first questioned, that this is an absolutist free speech bill?

One answer could be that, for all the government’s professed admiration of free speech that it is actually even less keen on the universal tolerance of all opinion than the disobedient students that the bill was intended to defeat.

For the range of opinions disapproved of by ministers is wider than just Holocaust Deniers. Over the summer, we have seen complaints of students painting Palestinian flags on their hands or putting up posters in support of Palestinian rights inside British schools. Gavin Williamson responded by insisting that “schools should not present materials in a politically biased or one-sided way”. In just the same way, ministers also have a strong idea of the opinions they want to discourage when it comes to such “culture war” topics as the legacy of the British empire, the statues of prominent slavers, trans rights, etc.

If ministers are going to insist on pushing this bill, they should have the courage to stand up and defend the law they have crafted. Yes, it will make life easier for David Irving, and not just him either but others to the government’s right: the likes of Nick Griffin or Tommy Robinson. That is the whole point of their law.

(If you’ve enjoyed this piece, you might enjoy my book, No Free Speech for Fascists: Exploring ‘No Platform’ in History, Law and Politics was published by Routledge in June).

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