RUTHFULLY YOURS

To loud and horrified criticism, Britain’s new Labour government scrapped a law on free speech days before it was about to come into force.

This law, which had been introduced by the previous Conservative government, was designed to enforce freedom of speech in universities, colleges and student unions. This was in response to “cancel culture”, the shocking suppression of ideas on campus that challenge left-wing orthodoxies and which has resulted in the hounding of conservative speakers and persecution of academics with heterodox views, such as “gender critical” feminists who believe that sexual identity is dictated by biological fact.

Not surprisingly, such embattled feminists along with numerous conservative thinkers and writers have reacted viscerally to the scrapping of this law.

However, a number of Jewish organisations opposed it. They feared that it would hand a weapon to antisemites and anti-Zionists that would enable them to claim legal backing for their promulgation of poisonous views that threatened the safety of Jews on campus and elsewhere.

So which camp is right?

The Free Speech Union, which has threatened to launch a judicial review of the government’s decision, said that killing off the legislation would make it “virtually impossible for students and academics to challenge radical progressive ideology on campus”.

The problem always was, however, that the legislation would have cemented in place other progressive radical ideologies with no prospect of challenging them.

Supporters of the discarded law are right to fear the threat to free speech and wider freedoms that is being posed by Sir Keir Starmer’s Labour government. This is an administration with potentially totalitarian left-wing instincts. Adopting hard-line views on transgender, “Islamophobia” and “white privilege”, it threatens to introduce draconian legislation that will criminalise all who transgress these damaging doctrines.

But free speech laws aren’t the way to fight this. Rules about speech, whether attempting to ban it or to enforce it, invariably backfire.

Enforcing speech codes also runs contrary to the core traditions of English law and liberty. English liberty, resting on the common law, basically permits everything that isn’t prohibited. European-style law, by contrast, broadly permits only what is expressly laid down in law.  Mandating or codifying liberty is a recipe for restricting it.

Free speech should not be absolute. Classical liberal theory, as expressed even by that nineteenth century icon of liberty John Stuart Mill, holds that freedom itself has limits as it must not be used to inflict harm on others. Freedom of speech similarly should have boundaries. Those limits should be narrowly drawn to prevent demonstrable harm such as incitement, defamation or character assassination.

Those harms very much apply to what’s being produced on campus about Israel and Jews — defamatory lies and ancient antisemitic tropes leading to bullying, intimidation and incitement which have made many campuses a dangerous place for Jewish students, and which the legislation was on course unwittingly to reinforce.

Antisemitism isn’t illegal, but one would hope that universities or student bodies would prevent it from being promulgated on their watch, just as they would presumably prevent a neo-Nazi or anti-black racist from speaking. The scrapped law would probably have prevented them from exercising that responsible judgment.

As Danny Stone, chief executive officer of the Antisemitism Policy Trust, has written in the JC:

The complexities of regulate speech quickly became evident when former Minister Michelle Donelan suggested protection in the Act for Holocaust deniers would “depend on what they are saying, whether they were straying into racism or straying into hate crimes”. Holocaust denial is antisemitism. It will always be racist…

In the UK Holocaust denial is not illegal. Holocaust deniers have been prosecuted under various laws and it is not considered ‘protected’ speech but it is nonetheless legal and the Act mandated that institutions ensure lawful freedom of speech. There was never a clear answer on the legal protections Jewish students would have against Holocaust deniers coming onto campus.

Ministers kept telling those of us raising concerns that Office for Students (OfS) guidance would steer HE institutions. When it came, the OfS draft text failed to show any serious thinking about the balance of freedoms. It referenced Article 10 of the European Convention on Human Rights but not Article 17. Article 10 protects your right to hold your own opinions and to express them freely without government interference. Article 17 prevents the abuse of rights. Mentioning one but not the other exposed the thinking behind the advice.

That wasn’t the only problem. The guidance offered examples of what should, and should not, be allowed. A reasonable interpretation of the text was that mandatory antisemitism training in which an answer was definitive as to whether something was anti-Jewish racism, should not be permitted.

Legally expressible viewpoints were to be protected, including in relation to protests or posters. It wasn’t clear therefore whether daubing “Free Palestine” on a Jewish Society advertisement was allowed, or if another campus Society could hand out Holocaust denial material. University leaders could make the cost/benefit analysis that upsetting Jewish students by failing to act on antisemitism was less expensive than the potential fines of £50,000 for getting a free speech decision wrong, if taken to court via the provisions in the Act. It was a mess.

It’s beyond question that the universities have betrayed their core function as the crucible of knowledge and ideas, and have become instead places where, all too often, reason goes to die. However, it should be for universities to police those boundaries and if they don’t the government should hold their feet to the fire.

Sadly, the Labour government will almost certainly not do this and instead will move in precisely the opposite direction. But if it does so, it must be fought by every means available in a free society — by argument, denunciation, protest, resistance movements and ultimately, votes.

It is beyond unfortunate that Jews should find themselves pitted against gender critical feminists, because they have one very big thing in common — they uphold truth against damaging, destructive and diabolical lies. That is the proper ground on which all should fight, shoulder to shoulder, against the cultural totalitarianism of the left.