Whether Donelan stays or goes, the problems she has created on campus remain

I’m no lawyer, but thanks to the free speech bill, I’ve picked up all sorts of nuggets of knowledge about English tort law.

Lister v Romford Ice and Cold Storage Co Ltd is all about vicarious liability and the duty of an employee to compensate their employer for any torts they commit in the course of employment.

Or maybe the state could claim back its costs from Policy Exchange, given it was its policy briefing on which Donelan’s original intervention was based.

After all, John Patten – leader of his own “culture wars” attack on students’ unions in the early 1990s – had to pay the circa 50k costs himself when he called Birmingham’s chief education officer a “nutter”.

But there’s something much more important going on here.

If we look at that Policy Exchange note, nothing sums up better the mess the government has got into over its twin sandbags on the campus culture see saw – a see saw that Donelan herself was responsible for navigating through Parliament.

The note – with its own little dossier of screenshots of tweets – argued that “many of the members” of Research England’s Expert Advisory Board on Equality, Diversity and Inclusion, “have shown support for radical anti-Israeli views”.

The note itself is careful to frame the “problem” as the “politicisation of the public sector”- PX’s Head of Security and Extremism says that “it is legitimate for academics to express such views” but that they “cannot be allowed to predominate, especially on government bodies”.

But it’s the paragraph further up – and Donelan’s piling on to it – that caused the problem:

The Chair of the Advisory Board, Dr Kamna Patel, recently retweeted a post on X (formerly Twitter) that described Israel’s actions in Gaza as “apartheid and genocide”. Another member, Professor Kate Sang, described the Home Secretary’s instructions to police to clamp down on Hamas supporters as “disturbing” and has retweeted a post including the phrase “from the River to the Sea”, a proposition interpreted by many people as a call for the destruction of Israel. A third member, Professor Dibyesh Anand, has retweeted posts referring to “extremist Israeli settlers” carrying out ‘their own terrorist violence against Palestinians.

Earlier that month, then Home Secretary Suella Braverman had said:

There must be zero tolerance for antisemitism, or glorification of terrorism on the streets of Britain. I expect the police to use the full force of the law against displays of support for Hamas, other proscribed terrorist groups, or attempts to intimidate British Jews.

So Donelan’s framing in her letter to UKRI of “extremist ideologies” is notable – not least because days later, universities minister Robert Halfon said that Donelan had “done the right thing”, adding:

We have to give a signal that we will not tolerate antisemitism in any shape or form – not just with the law but also with the spirit of the law.

We might have imagined, given her performance on Day 1 of the free speech bill on PM, that Donelan of all ministers would have understood and tried to avoid some of the deep and inherent contradictions in the approach here. Apparently not.

We also might have expected that the higher education minister would know that a university or SU trying to ban free speech that isn’t actually unlawful, but is in its “spirit”, would surely fall foul of its actual legislation. Apparently not.

The bottom line is that the government has created an expectation that universities and SUs will clamp down on, in the frame of tackling antisemitism, extremism and terrorism, things that they have in fact legislated to require universities and SUs to protect (and “promote”) at all costs.

Asking universities and their legal teams to make sense of that is one thing – but asking students themselves and their SUs to do it (including those caught by the act in FE) is quite another.

Even if you take things like calling Israel’s actions in Gaza a “genocide”, or using the phrase “from the river to the sea”, when I worked in an SU I might have informally suggested to students that while their actions were lawful, they could cause offence and so they might be mindful of that in the interests of good campus relations.

I’m not sure I’d do that these days for fear of having a “chilling effect”. But the worst bit is the way they have created an expectation that using such terms would amount to something that a university or SU can or should ban, when it’s increasingly clear that they can’t and shouldn’t unless expressed so in a particular way or… context. It puts everyone in an impossible position.

That’s the real problem with the uptick in antisemitism on campus. Some of it is egregious harassment. Some of it is nasty and calculated. But some of what the government has suggested *is* antisemitism is both a protected belief under equalities legislation, and now legally protected expression under the new legislation.

And everyone’s route to resolution isn’t debate or discussion or understanding, it’s complaints – because the message has gone out, on all sides, with a dedicated complaints scheme inside the HE regulator, that you both can and should resolve conflict in that way.

We are literally less than six months away from OfS opening a complaints scheme under which one group of students will say another’s actions amount to antisemitism, while the other will say they are threatening their right to express legally protected anti-Zionist beliefs – both saying their free speech is threatened as a result, both arguing they are being harassed, and both reasonable in asserting that they were assured their free speech and protection from harassment was assured.

And yet to date neither OfS nor the government has said a word about the obvious difficulties and complexities, and in fact repeatedly deny there are any contradictions at all – despite being backed into a u-turn that will generate another consultation on guidance, all amid reports that Rishi Sunak has (again) asked Michael Gove to “update” the government’s definition of extremism – to the anger of his own backbenchers.

Following last Friday’s Sunak speech on the issues, vice chancellors will shortly be called into No.10 over antisemitism and extremism on campus. There are legitimate incidents and issues to be tacked. But surely some of what they’ll say will have to be “you’ve legislated to protect some of that, Prime Minister”.

Meanwhile promised progress on sexual harassment and sexual misconduct is sat indefinitely in the buffers, while DLUHC, the Home Office, DfE and OfS get their stories straight on what counts as harassment/terrorism, and what counts as free speech – and so what has to be championed and what has to be banned, because you can’t hedge your best these days.

It’s an unforgivable mess – and the government should pause the implementation on the Free Speech Act now before it makes it all even worse.