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An Open Letter to a Midwit Labour MP on Why the Freedom of Speech Act is Not a ‘Tory Hate Speech Charter’

by Toby Young
13 October 2024 1:00 PM

Oxford law don Julius Grower has written an open letter in the Critic to Mark Ferguson, a midwit Labour MP who said in last week’s House of Commons debate about the free speech crisis afflicting English universities that the Higher Education (Freedom of Speech) Act which Labour has refused to implement is “a charter for Hizb ut-Tahrir, Holocaust deniers and vaccine deniers to wander our universities freely”.

Here’s how it begins:

My name is Julius Grower, and I am an Associate Professor of Law at the University of Oxford. I am writing to you having seen your contribution to the debate around the urgent question, asked today in the House of Commons, about freedom of speech in universities.

Towards the end of your remarks, you said: “Would my honourable friend [the Minister] agree with me that the party opposite’s position is in fact a charter for Hizb ut-Tahrir, Holocaust deniers, and vaccine deniers to wander our universities freely?”

I am afraid that your comments show a profound misunderstanding of the nature of the law upon which you commented, which I feel compelled to correct. You may very well have reasons for supporting the Government’s (I think, woeful) decision — condemned so far by over 650 academics, including 7 Nobel Prize laureates and a Fields Medallist — to pause the implementation of the Higher Education (Freedom of Speech) Act 2023. But the reasons you expressed today are fundamentally flawed ones. It is incumbent on you to do better

1. It is not a Tory charter

By the end of its time in Parliament, and, in particular, by the time it was being debated in great detail in the House of Lords, the then Higher Education (Freedom of Speech) Bill had received, in principle, cross-party support. If you are in any doubt as to that fact, you should speak with Lord Collins of Highbury, who was the relevant Labour shadow minister in the Lords at that time.

2. It does not protect Holocaust denial

The Higher Education (Freedom of Speech) Act 2023 does not purport to change the scope of the law on what is free to be said in English and Welsh universities. This point was expressly raised a number of times in the House of Lords, and was expressly responded to by the (then) Government. No one has seriously suggested otherwise since. Indeed, if you need confirmation of that, please read Akua Reindorf KC’s article in the Times Higher Education supplement. No lawyer has, as far as I am aware, suggested that she is wrong in saying what she has.

The definition of freedom of speech in the Act is expressly said to be that covered by Article 10(1) of the European Convention on Human Rights (as incorporated into English law by the Human Rights Act 1998). Article 10(1) is plainly and uncontrovertibly qualified by Article 10(2) and by Article 17. Furthermore, Article 17 has been interpreted by the courts, including the European Court of Human Rights, as specifically excluding Holocaust denial from the right to any legal protection. Again, please see Reindorf KC’s article if you need confirmation of this. Ms Reindorf is an Equality and Human Rights Commissioner and an expert in equality and human rights law. She is correct in what she says.

Incidentally, although I do not think I should have to say this in order for my points to be taken seriously, it seems appropriate to make clear that I myself am Jewish, and am acutely aware of the problems of anti-semitism on our campuses. However, I believe that the solution to that issue is to give effect to legislation which will more effectively allow Jews and Zionists to hold their own events on campuses, and stop them from being closed down by murky threats made by mobs. Unfortunately, as we have just seen with Suella Braveman’s cancelled talk in Cambridge, this is precisely what is happening under the current (unreformed) regulatory regime.

3. It does not protect Hizb ut-Tahrir’s speech

It is not wholly clear from your remarks what you meant by the law being a “charter” for Hizb ut-Tahrir. Clearly it is not legislation which alters the fact that Hizb ut-Tahrir is a proscribed organisation. I assume therefore that you meant that the Act would cover – and allow for the promotion of – Hizb ut-Tahrir’s ideology. This is, once again, entirely false. Expressing support for Hizb ut-Tahrir, and spreading or supporting their hateful ideology, is a criminal offence. People can go to prison for doing so. As said above, nothing about the 2023 Act changed (or even purported to change) the scope of what can and cannot be said as a matter of English law, whether within or without universities. Section 1(2) of the Act refers to “freedom of speech within the law”. The key words there are: “within the law”. Praising/expressing support for/promoting the propaganda of a terrorist organisation is unlawful speech and thus not covered by the Act. Even if you are not a lawyer, this should, I’m afraid, have been obvious to you upon even a cursory reading of the legislation.

Worth reading in full.

Stop Press: A leading academic had to leave his post as head of a department at Kings College London and emigrate to Australia because he wrote a pro-Brexit article. The Mail has more.

Stop Press 2: Suella Braverman has warned that the cancellation of her speaking event at Cambridge is symptomatic of a wider free speech crisis in our universities. The Sunday Times has more.

Tags: Free SpeechHigher Education (Freedom of Speech) ActHizb ut-TahrirHolocaust DenialLabour GovernmentMark Ferguson

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