It’s back to square one on free speech. Is antisemitism protected or banned?

Cambridge philosophy professor Arif Ahmed has been appointed by the Westminster government as England’s first Director for Freedom of Speech and Academic Freedom.

With the Higher Education (Freedom of Speech) Bill completing its tortuous two year passage through parliament, The Times confirms that Ahmed, the favoured candidate of Spiked!, the Free Speech Union and the Commons “Common Sense” group, will join the board of the Office for Students (OfS), enforce new duties on universities and SUs, and operate the new ombuds scheme that is gifted to the regulator in the legislation.

In the absence of a formal announcement from the Department for Education (DfE), Ahmed takes to The Times’ paywall to argue that there are “urgent threats” to free speech and academic freedom in universities and colleges, and that “all means necessary” must be used to address them:

A university is not a club. It is not a political lobby. It is not a seminary. It is not a “brand”. It exists to seek and speak truth, whatever it costs and whoever it upsets. Therefore, without freedom to explore controversial or “offensive” ideas, a university is nothing.

OfS CEO Susan Lapworth said:

Freedom of speech and academic freedom are essential underpinning principles of higher education in England. Arif’s appointment will ensure they continue to be robustly defended.

The self-announcement comes in the slipstream of a high-profile row over the booking of gender critical academic Kathleen Stock to speak at the Oxford Union – an issue that Rishi Sunak found the time to intervene in directly, making the front page of the Telegraph in the process.

At the weekend the Mail reminded its readers that he will investigate possible “breaches” of free speech, with the authority to recommend fines – and then implies that this sort of thing would count as such a breach:

Recent free speech controversies have included the campaign to remove the statue of 19th Century diamond miner Cecil Rhodes from the outside of Oxford’s Oriel College because of his role in British colonialism.

The persistent rumour had been that Ahmed was in the last two for the post along with HEPI’s Nick Hillman – whose application was probably doomed when his old boss David Willetts spearheaded the (temporary) deletion of the bill’s statutory tort when it got to the Lords late last year.

The FSU’s Toby Young neatly put the knife in as follows:

Nick was a widely respected special adviser to Lord Willetts and has done a great job at Hepi, but nothing in his career to date suggests he’s as passionate about free speech as Arif.

Ahmed’s CV includes all sorts of commentary on incidents mainly across Oxbridge, gaining notoriety principally over his campaign to delete having to “respect” other viewpoints in a proposed policy at Cambridge – where the word “tolerate” was inserted instead.

That CV also includes being a commissioner at the Equality and Human Rights Commission (ERHRC) since January – and in that context regular readers will know that wherever a question has come up about regulatory requirements or legislation that might place restrictions on expression, usually centred on EDI issues, the government has clung on to the “reasonably practicable” wording that qualifies the duties.

In his self-announcement Ahmed reminds readers of the balancing act that universities and SUs will need to perform:

The public sector equality duty means institutions must “have due regard” to the need to achieve certain equality aims. They should be clear about equality implications of their decisions. They must recognise the desirability of achieving equality aims, but in the context of the importance of free speech and academic freedom.

So one thing that is particularly interesting about Ahmed’s appointment is his position on the IHRA definition of antisemitism.

Chill out

Back in February 2021, Ahmed took to the HEPI blog to comment on what was then Gavin Williamson’s command paper that prefaced the actual bill later in May. In that blog, along with the usual stuff on pronouns and links to the GC Academia Network there was a pointed reference to the government position on IHRA:

…I am (like the UCU) strongly against Gavin Williamson’s requirement that universities adopt the IHRA definition of anti-Semitism. This “definition” is nothing of the kind; adopting it obstructs perfectly legitimate defence of Palestinian rights. As such it chills free speech on a matter of the first importance. I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

That’s an interesting view because it has always been the case that multiple aspects of EDI – insofar as they might cause someone to seek to give freedom from harm – have had the potential to conflict with a push to champion freedom to speak.

You might recall, for example, that on the day that the actual bill ended up being published, then universities minister Michelle Donelan got into hot water over comments on Radio 4’s PM that suggested that holocaust deniers would be protected by the bill – only for the Prime Minister’s spokesman to issue a vehement denial that that would be the case hours later.

Robert Halfon cuts an interesting figure here. He’s long been a strident campaigner over antisemitism on campus, and as recently as March 2022 when he was chair of the commons education committee, was challenging OfS’ CEO over what it was doing to not just combat antisemitism at universities but “require universities to adopt the international definition of antisemitism”.

Of course oddly, now he’s in the government Halfon holds the universities portfolio but not the freedom of speech portfolio, which instead went to schools minister Claire Coutinho.

Who knows if they are at one over Ahmed’s appointment.

The Chair of OfS, Lord Wharton, certainly has views. In his appointment hearing in front of Halfon’s committee in 2021, Wharton reassured MPs that he was very familiar with the IHRA definition:

I will be quite honest: I do not understand why any university would not have adopted it, and I would want to look at those universities that have not, particularly given the very strong steer that they have had from the Government.

The good news is that the potential for the adoption of IHRA to conflict with the new duties has been raised in parliament. At second reading in the Lords, Lord Howe for the government reassured as follows:

Secondly, the Government do not see a conflict between protecting freedom of speech and adopting the IHRA definition.

That’s as maybe, but at least on the face of it the government’s appointee to the key job enforcing the regulation does see a conflict.

And Labour shadow minister Matt Western has submitted multiple written questions on the issue, with Coutinho arguing as follows:

The department is clear that antisemitism is abhorrent. We remain committed to the IHRA definition and our belief that providers should adopt it.

We might reasonably argue that an odd way to urge adoption would be to appoint someone in a directly related regulatory role that thinks doing so “chills free speech” and thinks the duties he’s now enforcing “ought to rule it out in any case.”

And then there’s Lord Mann, the government’s own antisemitism tsar.

His report on Understanding the Jewish Experience in Higher Education notes that the Antisemitism Policy Trust highlighted concerns that extremist groups or individuals might abuse the processes established in the Act, to gain legitimacy under the guise of freedom of expression:

We were told that Ministers had referenced the phrase “reasonably practicable” in relation to the steps institutions must take to ensure freedom of speech, and that this did not require therefore an open platform for all to spread hate on campus. We do however agree that the OfS should clarify its guidance on this.

And on Ahmed himself, Mann couldn’t be clearer:

Professor Arif Ahmed hasn’t got a clue what a working definition is. IHRA has two, both excellent. Clearly a man who hasn’t listened carefully to the Parliamentary debate over free speech.

— John Mann (@LordJohnMann) January 16, 2023

Professor Arif Ahmed falls into the lazy vagueness of ‘chilling’ debate, but cannot cite a single example of IHRA restricting anyone’s free speech. I challenge him to provide any UK example.

— John Mann (@LordJohnMann) January 16, 2023

Since Ahmed’s name first appeared in the frame, plenty of people have been left wondering if the use of IHRA would be banned, discouraged, tolerated, encouraged, or still de facto required. In his announcement op-ed, it seems that he’s been persuaded to find a form of words that he must figure square the circle:

The International Holocaust Remembrance Alliance’s working definition is an important tool for understanding how antisemitism manifests itself in the 21st century. Adopting it sends a strong signal to students and staff facing antisemitism. But it must not restrict legitimate political speech and protest. I will act impartially.

That might work as a press line, but it’s not immediately clear that that sentence particularly helps a university or SU embroiled in a row over the practical application of IHRA to a disciplinary issue. Who knows how that sentence might (or might not) apply, for example, to the David Miller case or any number of student society and event controversies.

Pointedly, given the press release from her solicitors in March, it’s not at all clear whether Ahmed would regard sacked NUS President Shaima Dallali’s alleged transgressions to be something that, if carried out on campus, would have been protected or banned under the Act he will enforce. Halfon certainly has a view on that.

And don’t assume this is only about antisemitism. The issue is as much about all sorts of other EDI initiatives as it is about IHRA.

Weighting both ends

Imagine that EDI and harassment, and free speech, are often at both ends of a see saw. Then remind yourself that the government, through the regulator, is about to place two very heavy sandbags onto both ends of that see-saw.

If IHRA is OK, does that mean that the Race Equality Charter will be given a green light? Will Ahmed nod through the Stonewall Equality Index? How about decolonisation in subject benchmark statements?

The Times reports Ahmed says failures under the new Act could include:

…enforcing “ideological” bias training for staff and students.

But if IHRA isn’t in conflict with the duty, will SU Presidents be able to critique a visit from a speaker that their students think is transphobic?

Or take the Oxford example. For a few weeks now the media has been reporting that the central students’ union at Oxford University is to “sever ties” with the Oxford Union debating society – a story almost always accompanied by a large photo of Kathleen Stock, with the implication that it was the Oxford Union speaking booking that caused the (very much) separate SU to dissociate.

Commentary has suggested it was a move which would prevent the Oxford Union from recruiting members at the SU’s Freshers fair in September, with a consequent hit on its income.

When the story was first picked up by the nationals, the effective architect of the free speech act, Iain Mansfield, took to Twitter to argue that the act will help in scenarios of this sort:

Looks like the Free Speech Bill was passed just in time!

If it bars the Oxford Union from Fresher’s Fair it will very obviously be eligible to be fined for breach of its new duties.

Hopefully they will realise this and change course.https://t.co/SgtJJbHMqF

— Iain Mansfield (@IGMansfield) May 11, 2023

As well as rehearsing his views on students’ unions in general, he also argued that the Oxford Union would have no difficulty getting redress from either the OfS complaints scheme or the tort – because loss of membership income from being banned from the fair would be easy to demonstrate as loss.

And The Times reports that Ahmed says breaches under the new Act could include:

…cancelling a talk on women’s rights due to internal political pressure.

On the one hand, a look at the actual motion in contention here reminds us that the Oxford Union considers itself outside of the ambit of the university or SU – and that is pretty much the settled position:

The Oxford Union is a private members’ club that does not fall under the jurisdiction of the university.

So if it’s not a part of the SU or university, how would it be making a claim to free speech in the SU or university? And even if it could, the act concerns not denying space or affiliation on the basis of policies, opinions and beliefs. A look at the motion tells us that it’s mainly concerned not with those things but with the Oxford Union’s conduct – and potential harassment/sexual misconduct within it:

The University’s Proctors Office has no jurisdiction over the Oxford Union, and therefore the Union does not have to answer to them regarding incidents of sexual violence and harassment on its grounds. Unlike many student societies, there is no external body to regulate or hold the Union accountable for its actions.

As it stands, the settled position at Oxford appears to be that sexual misconduct within the Oxford Union can’t be investigated by the university or SU because it’s their private life not their student life. Is Iain Mansfield suggesting that that position should hold once OfS concludes its consultation on harassment and sexual misconduct?

Because it would seem odd, wouldn’t it, for Arif Ahmed to judge that the SU should give the Oxford Union a stall at a Freshers Fair, but for OfS to have no jurisdiction over the principal issue that the SU seems to have with that club – which is that it operates laws unto itself over sexual misconduct.

(I should add here that across history, the Oxford Union has cancelled talks for all sorts of reasons, including over security concerns and costs. If the Oxford Union does so again at some stage, will it suddenly be arguing that its independence means it can’t be touched by Ahmed and his new powers?)

Again, over “independent” societies, maybe a form of words will be found – and certainly for the time being something seems to have been done internally to calm that storm while Stock’s appearance at the Oxford Union blows in and blows over.

But while Ahmed might be able to dodge a bullet over anecdotes surrounding SUs, the government’s counter-terrorism strategy is surely a much harder circle to square. And he has form here too.

The very notions

Again, using that “reasonably practicable” confection, the government argues that universities’ role in implementing the Prevent duty and the Office for Students’ role in regulating universities application of that duty are compatible with duties to secure academic freedom and freedom of speech.

But Ahmed disagrees. Writing in Cambridge student magazine Varsity in 2018, he didn’t just raise some questions or concerns – he agued that it “puts both intellectual and individual freedom at risk” and “undermines the very notions upon which universities were first built”. He goes on:

Perhaps most importantly, the language represents a shift from what you would have thought was the aim of anti-terrorist legislation, namely the prevention of certain crimes, towards something far more sinister: the promotion of particular values. It is one thing for the state to prevent anyone, by force if necessary, from violent means of achieving whatever ends he or she has. It is quite another thing to regulate the ends themselves, that being a job not for proper police but for thought police. Individual liberty is indeed a fundamental value of humanity if anything is; but if it means anything then it means the liberty to question all values, including itself.

He also argued that it has a profound EDI implication when it comes to self-censorship:

I think Prevent is repressive, I think it’s been a disaster for interreligious relations. I think it causes self-censorship especially among the Muslim community but no doubt for others as well.

Making sense of the see-saw

What is crucial about this is that universities and SUs are going to need to know how OfS will approach all of these balancing acts to understand how they should – especially important in the context of different parts of OfS being responsible for different bits. If an EDI initiative is in a signed off Access and Participation Plan, can Ahmed come in and critique if John Blake’s team has signed it off? And so on.

And when I say universities, I don’t just mean the registrar or the executive team. The “positive duty to promote” in the Act is likely to require that students and staff properly and fully understand the balance.

At this rate, anyone taking part in what is about to be compulsory training on harassment this September that tells a journalist that the discussion veered onto racist microaggressions, the plight of trans students or the Prevent duty is going to end up accused of indoctrination by the Times and the Telegraph. What will Ahmed do then?

The point is that chucking heavy sandbags on the see-saw for different audiences on different days is a press and parliamentary tactic. It doesn’t actually work on campus – and it’s going to need to.

In the end, the Office for Students, for all of the moaning that people do about its closeness to government, can’t really get away with the sort of double standards over EDI or Prevent and their relationship to free speech that ministers, GB News or the Free Speech Union can.

If it tries to, its credibility will be undermined even further than it is now. If it’s more cautious, Ahmed will be a spectacular let down in the eyes of those who championed his appointment.

Either way, while the next 18 months or so should be a wild ride, it was already hard to see how Ahmed’s appointment would survive if the government loses the next election. It’s becoming just as hard to see how he survives if the government wins it.