Given it had come up at her last encounter with the Commons’ Education Committee, it’s hard to believe that universities minister Michelle Donelan wasn’t fully prepped for a question on antisemitism and free speech when she sat down to discuss the government’s new legalisation on it on Radio 4.

But apparently not. Questioned by presenter Evan Davies on whether historian David Irving, widely regarded as a Holocaust denier, would be someone meriting the protection of the Higher Education (Freedom of Speech) Bill, Donelan merely reiterated the basic “in principle” libertarian position on free speech – if it’s lawful, it’s allowed:

Michelle: What this bill is designed to do is ensure that we protect and we promote free speech that is lawful so any free speech that is lawful…

Evan: It is lawful, Holocaust denial is in this country lawful isn’t it? So Holocaust denial is okay, you would defend a holocaust denier being invited to campus because that is part of the free speech argument?

Michelle: Obviously it would depend on exactly what they were saying, whether they were straying into racism, whether they were straying into hate crimes, but a lot of these things that we would be standing up for would be hugely offensive and would be hugely hurtful…

Less than 24 hours later, both her boss Gavin Williamson and PM Boris Johnson had flat out contradicted her, and Donelan herself both issued a panicky 10.15pm tweet thread making clear her view that antisemitism is abhorrent “and will not be tolerated at our universities”, and met with Charlotte Nicholls MP to “confirm that she had misspoken and it was not the intention of the government that the new bill be used to defend Holocaust denial.”

So how on earth did we get here? And where will this end up next?

Absolute clarity

When the Queen’s Speech debate on “a brighter future for the next generation” turned to Donelan’s apparent misspeech, Gavin Williamson said the following:

Let us be absolutely clear that this legislation will never protect holocaust deniers. It protects free speech within the law. It protects the fact that – we know that antisemitic activity and antisemitism are not to be tolerated. It is clear in the Equality Act 2010. We will never tolerate it, and this legislation will not allow holocaust deniers to be able to spread their hate and misinformation on our campuses.

It was an interesting construction for a few reasons. First, the Equality Act neither talks about antisemitism nor holocaust denial explicitly in the way implied. But secondly, what it does do is remind us that universities have, and will continue to have, duties under the Equality Act 2010 – and that means that students and staff have protections and rights under that legislation too.

People can’t be treated worse than others because of a protected characteristic. This can be both direct and indirect, where an organisation puts a rule or a policy or a way of doing things in place which has a worse impact on someone with a protected characteristic than someone without one.

There are also protections from harassment – you can’t be treated in a way that violates your dignity, or creates a hostile, degrading, humiliating or offensive environment. You have a right to be treated fairly if you take action under the Equality Act – like making a complaint of discrimination, or supporting someone else who is doing so.

And the Equality Act also requires public bodies (like local councils, hospitals, and universities) to consider how their decisions and policies affect people with different protected characteristics and to maintain evidence to show how they have done this.

Common sense

But there’s a problem with those rights and duties. The allegation from one corner of the culture wars is that the Equality Act 2010 is a woke, snowflake’s charter – used overzealously and illegitimately by those who want to cancel others and shut down debate.

As good as any description of that position is contained in this “manifesto” from the Common Sense Group of MPs, who pop up regularly in the press to complain about the National Trust, Black Lives Matter or students’ unions:

Interpretation of existing law has added considerable momentum to the impact of “woke” campaigns. For example, judicial interpretation of the Equality Act 2010 has had the effect of enshrining the notion that if one says one has been offended on grounds of race, religion, sexuality, gender etc., then one almost automatically has been. This gives huge power to activists and forces the leaders of organisations to fight endless fires of grievance, stifling freedom, embittering the workplace and sowing division.

So when Donelan says that “a lot of these things that we would be standing up for would be hugely offensive and would be hugely hurtful”, she’s reflecting that simplistic libertarian view – that people don’t have a right to “not be offended”.

The problem is that when you move that conversation from partisan pamphlets and Telegraph podcasts to legislation, things get altogether trickier.

On commission

In the Equality and Human Rights Commission’s guidance on campus free speech (endorsed by the Sam Gyimah, then Conservative universities minister) it’s clear that the Education Act 1986 duties around free speech are not all-conquering:

There are some situations where civil law provides protection against offensive or harassing behaviour. These include discrimination or harassment under the Equality Act 2010. It may be that certain views are lawful to express, but are unlawful in certain contexts such as in the workplace.

When HEPs, SUs and their clubs or societies are acting as service providers to members of the public, or as associations under the Equality Act 2010, they may be liable for discrimination against, or harassment of, their service users, members and guests. This may apply when they are hosting speakers or events that are open to the public.

Harassment under the Equality Act 2010 is unwanted behaviour related to certain protected characteristics, which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Whether or not behaviour is harassment is not just based on the view of the person making the complaint. The courts consider whether it is reasonable for the behaviour to have that effect, as well as the circumstances. They have to balance competing rights, including the right to freedom of expression of the person responsible.

The harassment provisions cannot be used to undermine academic freedom. Students’ learning experience may include exposure to course material, discussions or speaker’s views that they find offensive or unacceptable, and this is unlikely to be considered harassment under the Equality Act 2010.

Also, if the subject matter of a talk is clear from material promoting an event, then people who attend are unlikely to succeed in a claim for harassment arising from views expressed by the speaker.

So when Williamson says “it is clear in the Equality Act 2010”, what he means is that as well as a duty to promote free speech (freedom to), universities will retain a duty to protect people from certain types of harm under the Equality Act 2010 (freedom from).

And they might do that by, for example, doing as new Office for Students (OfS) chair James Wharton suggests:

Any form of unlawful harassment must be tackled robustly, with universities not shirking difficult steps to make sure that students are protected. One straightforward action to take is for all universities to sign up to the IHRA definition of antisemitism. The definition is important in helping us all to interpret and understand antisemitism and I strongly urge any university that hasn’t signed up to do so without delay. Those universities that have signed up must – of course – continue to be alert to antisemitic incidents and have clear measures in place to ensure that Jewish students are free to study and enjoy university life without fear of harassment.

In other words, it’s helpful when discharging the duty to define antisemitism – and the IHRA definition covers Holocaust denial:

Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).

Into the knots

But once the government accepts that its position on free speech “within the law” isn’t absolute when it comes to antisemitism, it may well get itself into a problem over the 2010 Equality Act because restricting one form of racism is not equal treatment.

And more importantly, once it concedes that antisemitism can be outlawed because of the discrimination and harassment aspects of the Equality Act, it opens (back) up the (back) door of (in the words of the CSG) “enshrining the notion that if one says one has been offended on grounds of race, religion, sexuality, gender etc., then one almost automatically has been.”

Although we haven’t seen the legislation yet, the published proposed approach of the Online Safety Bill (formerly known as the Online Harms Bill) coming out of the Department for Culture, Media and Sport (DCMS) is both more sophisticated and more grown up.

As well as stressing the free speech aspects, it will establish that the large social media firms fulfil a duty of care and will need to take robust action when there is evidence that users are being harassed or abused on their services.

Some of the areas it will expect the regulator (OFCOM) to include in a code of practice are steps companies should take to ensure that their services are safe by design; tools companies can provide to help users experiencing harassment, such as the ability to mute, block or stay hidden from other users, and to manage and control access to particular services and content; and measures to ensure that reporting processes are fit for purpose to tackle this (otherwise legal) harm, such as the ability to report a high volume of messages in bulk to reduce the burden on victims suffering from a campaign of harassment, and a prompt to use the tools to block the other user while the report is being investigated.

Universities are not, obviously, social media firms. But the point here is both about DfE ministers’ priorities and their view both of universities and students, and of the victims of harassment.

Freedom from, freedom to

For a long time it’s been getting clearer and clearer that there’s a hole in the Higher Education and Research Act in relation to “duty of care” issues. There’s no real duty there – and it means that OfS efforts on mental health or harassment lack clarity and teeth.

Efforts to address that legislatively have not been forthcoming, despite the evidence on mental health and racial and sexual harassment and misconduct mounting. That’s all real evidence – as opposed to the thin stuff in two Policy Exchange reports being used to justify a huge Command Paper and now a whole bill on freedom of speech.

The point about the Online Safety Bill is that it at least looks set to recognise that “freedom to” and “freedom from” are related, and that handling these sorts of issues requires skill, care and nuance – a careful balance of the sometimes competing duties – and involves trusting companies to do the right thing, and giving victims the benefit of the doubt and support to report.

And the duty will be dual. Protect freedom to speak directly, and protect people from harm in order (indirectly) that they can speak.

That’s important because DCMS apparently understands and recognises that even when leaning in to free speech as a default priority, harassment, discrimination and oppression in and of themselves can represent a potential attack on the affected groups’ freedom of speech – which is what students’ unions have been saying for years about “safe space” policies within their meetings and structures.

But as they try to douse the culture war in DCMS (and I say that despite twaddle like this), over in DfE ministers fan the flames. They dare not give students who discuss their experiences of discrimination or harassment the benefit of the doubt, because they’re just censorious wokeists and universities are not to be trusted.

What’s now required is some proper partnership working. Almost everyone I know working in universities and SUs wants both to secure freedom of speech and to protect students and staff from harassment – and they need real help when the two freedoms clash. If ministers are serious about wanting those two freedoms too, they’re there for the taking if ministers would just grow up a bit and help rather than hector.

And perhaps more importantly – given almost every free speech issue in a university plays out online – could the two government departments maybe talk? And if ministers really are determined to unpick the Equality Act 2010, can they at least have the good sense and courtesy to do that directly via the Cabinet Office, rather than run a proxy war through DfE and universities?

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