No, minister, England’s free speech bill is a Holocaust deniers’ charter

The UK government’s plans to strengthen academic freedom and free speech protection in English universities have already attracted a barrage of criticism from within the sector. Perhaps the least damning objection is that freedom of speech is already adequately protected in law. More substantially, academic and students’ unions are worried that the wording of the Higher Education (Freedom of Speech) Bill will see them embroiled in a barrage of vexatious legal claims from no-platformed provocateurs and Holocaust deniers.

Last week, universities minister Michelle Donelan offered assurances on that score. She said that universities would have to balance the legislation’s injunction to take “reasonably practical steps” to allow free speech with their other legal responsibilities, such as abiding by the Equalities Act.

“The free speech bill isn’t a right to a platform,” she said. “It doesn’t mean a university should have to invite such a speaker. I would argue no university should be inviting a Holocaust denier because it’s such an extreme and dangerous viewpoint.”

It is clear that Donelan hasn’t read the bill carefully enough. While the wording about “reasonably practical steps” probably does mean that a university would not be required put on an event at noon on a Tuesday if the request was first communicated to them on Monday at 5pm, it doesn’t mean that it is not obliged to given the requester a platform at all.

Nor does the bill require that the request should come from someone on campus. Rather, any outside body or individual will be entitled to demand a platform (a prominent venue at no charge, and with time to speak) even if they have no history with the university, no geographical relationship with it and no friends at all on campus. This will certainly increase the prominence of the right-wing figures that the government favours, but it will also give oxygen to a large amount of advocacy it dislikes: not merely Holocaust deniers but also those who just sit somewhere else on the big political questions of the day, such as the legacy of the British empire.

Nor is Donelan’s point about the Equality Act accurate. Free speech is currently one of several competing duties, all of which universities must follow. However, the effect of the Bill will be to constitutionalise academic freedom and free speech, giving them automatically greater weight than those other legal duties that have, until now, been cited by campaigners in their objections to hate speech. The consultation document is clear on this: “The exposure of students to views or course content that they find offensive or distasteful is unlikely to constitute harassment. Similarly, a speaking event where the content has been clearly advertised in advance is unlikely to constitute harassment if attendees attend with prior knowledge of the views likely to be expressed.”

Further problems are guaranteed by the bill’s creation of a right for all university employees, workers or contract staff to “bring civil proceedings against a registered higher education provider” to enforce free speech and academic freedom. Where previous generations of ministers might have limited this right to particular situations, the drafters in this case have cast it as widely as possible.

What is being created is a vast apparatus of legal powers and entitlements that would make university lecturers the most protected workers in the UK. As I am a lawyer who represents workers in tribunal claims for discrimination and unfair dismissal, you might expect me to welcome that. But I don’t.

About 100,000 people across the UK bring such claims each year, but it would probably be a lot more if successive governments had not seen fit to introduce all sorts of limits: all claims must be brought within three months, for instance, and damages are capped. The new employment right to academic freedom will not be subject to any of these exclusions.

What ministers don’t grasp is that because the authority of a member of staff or a graduate student resides in what they research and teach, any petty grievance can be relabelled a fight for free speech or academic freedom. A barrage of petty claims seems the inevitable result.

I remember my first day as a history PhD student. My university had obtained a series of papers from a donor; they were a priority for the department and someone needed to study them. “Why don’t you base your PhD on them?” my supervisor asked. I was horrified; the benefactor was a particularly verbose former supporter of Oswald Mosley, the leader of British fascism in the 1930s, who had spent decades digging away inside the National Farmer’s Union. I did not want to waste three years of my life studying just him.

My supervisor saw my horror and, thank goodness, backed off. But suppose he hadn’t. Under the new bill, I could apply to a district judge to have him slapped down, on the basis that my academic freedom entitles me to study whatever topic I like. Or, at any point within six years, I could sue for damages. That might have made me feel better – but would that really be a good use of universities’ and courts’ time and resources?

More to the point, would I have been able to afford to bring such action? Because, as ever with rights, what matters is not just the right on paper, but who will have the chance to enforce it. In civil litigation (unlike claims to the Employment Tribunal), the loser must ordinarily pay the winning side’s costs. The people who will use these rights most assiduously will therefore be the ones who can find a wealthy sponsor to pay for the case if they lose.

Whether that donor has the politics of a Charles Koch, a J. K. Rowling or a Gina Miller, the same problem applies. Mega-donors shouldn’t be the ones who decide which causes get a hearing and which don’t.

David Renton is a barrister and the author of No Free Speech for Fascists: Exploring ‘No Platform’ in History, Law and Politics, to be published by Routledge in June.