Would the free speech act have ushered in antisemitism?

It’s not especially surprising that Arif Ahmed and the Office for Students (OfS) are apparently listed as interested parties in a judicial review of the function they were going to operate.

But the Telegraph seems to think that the development will be seen as “highly embarrassing” for ministers, as it now leaves them open to criticism in court “from their own free speech tsar” – seemingly forgetting that it was the previous government that appointed him.

We’ve not not heard a lot from Arif Ahmed over the year in the fourteen months since he’s been in post. Arguably his most significant intervention came on what was pretty much his first day – when his op-ed in The Times said this about antisemitism:

Similarly, 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.

It was significant because back in February 2021, Ahmed had taken 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 there was a pointed reference to the government’s position on IHRA:

I am (like the UCU) strongly against Gavin Williamson’s requirement that universities adopt the IHRA definition of antisemitism. 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.

It was even more significant when, a few hours after that Times publication, the following paragraph was mysteriously added to the piece:

I have had concerns about this in the past. Since then, I have seen at Cambridge how in practice the working definition can accommodate robust support for free speech and academic freedom. More recently, the report of the parliamentary task force on antisemitism in higher education indicates that none of the 56 university adopters who were asked reported that its adoption had in any way restricted freedom of speech.

So of the free speech act-adjacent material that’s appeared in the press this weekend, it’s probably this piece in the JC from Ronnie Fraser – Director of the Academic Friends of Israel (which has campaigned since 2003 against BDS and antisemitism on campus) – which is the more significant.

In it Fraser reveals that two weeks before the deadline, he was asked by the Union of Jewish Students to make a submission on the “draft regulations”, which I assume means the consultation that OfS ran on Regulatory advice 24: Guidance related to freedom of speech.

He points out that during the passage of the Higher Education (Freedom of Speech) Bill, then universities minister Michelle Donelan had reassured on antisemitism as follows:

I work very closely with the Office for Students and intend to continue to do so in the formulation of the guidance. It is important that that guidance is robust and comprehensive and that it enables both universities and student unions to know exactly how to work with the legislation.

Fraser, UJS, a whole host of universities and SUs and many others (including me) were therefore pretty surprised when, after a screeching u-turn on publishing guidance at all, a draft appeared with nary a mention of antisemitism or the IHRA definition of it – leading to four key concerns.

The government spent a good chunk of the last Parliament encouraging adoption of the IHRA definition – even asking OfS itself to monitor those that had and hadn’t at one stage – so Fraser was particularly worried about this bit of the proposed guidance:

If any code, contract or policy that regulates speech, or has the effect of regulating speech, identifies a category of restricted speech (such as “harmful speech”), then such a category should be defined in a way which is not capable of restricting freedom of speech within the law, or academic freedom.

Evidently his response to the consultation pointed out that that appeared to force universities to either remove the IHRA definition from their codes of conduct or clarify that antisemitsim is not restricted speech – an “acute embarrassment” for the current IHRA president (Lord Pickles) and the British government.

The second concern was Holocaust denial. Donelan had said:

The new director will produce extensive guidance to assist universities…That guidance will make it clear that the European Court of Human Rights has held that holocaust denial is not protected speech under article 10 of the European convention on human rights.

But the guidance did nothing of the sort – it was, in fact, pretty silent on the different ways in which “balancing” provisions like Article 10.2 or Article 17 (abuse of rights):

Unfortunately there was nothing in the draft regulations to allow the continued use on campus of either of these definitions.

The third concern was on training – UJS provides antisemitism awareness training on campus, but the guidance draft had said:

…providers, constituent institutions and relevant students’ unions should not require training or induction that imposes a requirement to endorse any controversial viewpoint or value-judgement.

Fraser had interpreted that to mean that it would be very difficult to provide antisemitism awareness training on campus – because attendees to training wouldn’t be asked to discuss and identify contemporary antisemitism and that “the IHRA definition itself would be considered to be very controversial”.

You can see his point. OfS’ consultation on a condition of registration on harassment and sexual misconduct had said that:

…we would expect there to be an appropriate amount of time dedicated to mandatory training as well as an opportunity for attendees to ask questions. For example, a short online session at the beginning of a student’s higher education career that does not allow for questions and discussion, is unlikely to be sufficient to meet our proposed requirements.

So given that OfS was also mandating that “providers must not take steps that interfere with or restrict lawful free speech”, Fraser was struggling to see how the circle was to be squared.

The final concern was over disciplinary processes – the proposed guidance had said:

…policies that regulate: a. protests and demonstrations; b. posting or distributing written material (such as flyers); or recruitment activities should not restrict these activities because they express or support a particular legally expressible viewpoint.

In Fraser’s view, the clause reduced universities’ ability to discipline students or societies:

One recent incident on campus last summer was the “Intifada until victory” posters posted around a university. It appeared that under the new regulations this highly inflammatory incident would not have been subject to any disciplinary procedures.

We don’t know what the final draft was due to say in August (I doubt my FOI request will result in anything other than a series of exemptions being reached for), but it may well be that at the very least, ministers in possession of it didn’t like the interpretation of the complex casework environment that was set to be represented in it.

So even if the government is able to say that it was sensible to stay a pause in implementation, with a view to a different (perhaps more enabling, “good campus relations” style) approach, it remains the case that those handling practical questions over the line between free speech and antisemitism will find themselves caught between multiple groups and interpretations.

As I’ve said before on here, it’s not that I think universities or their SUs are especially calculatedly partisan on the Israel/Palestine question – it’s that the law was set to expect them to handle astonishingly complex legal questions, with threats if they got it wrong and a see-saw push towards free speech.

Over the summer, I’ve used this photo from a protest at the University of Birmingham earlier this year with SUs to illustrate – knowing what you know about the free speech act, is what’s going on in this photo OK?

Some have knee-jerked towards a strong “No” until I’ve pointed out that anti-Zionism is a protected belief under the Equality Act. Others have knee-jerked towards a strong “Yes” until I’ve pointed out that Zionism is too – and thus those on campus sharing that belief are likely to feel harassed and intimidated.

The point is partly that context matters – but the more important point is not what the expensive legal advice to the registrar says, it’s what the student activities coordinator making micro decisions on a daily basis when advising activists would be saying.

What the act was going to do – what it was set up to do, and what the guidance was framed around doing – was to always assume that universities and SUs were unnecessarily restricting free speech rather than managing complex tensions.

Those who’ve won cases against universities and SUs over the years might well lament that the decisions they’ve battled have been “woke” – but pretending that that was some sort of plot was always the problem.

And it’s why it’s always been the case that an approach focussed on supporting universities and SUs to combine freedom of speech with the safety of others, rather than a pretence that they are not often in conflict, is what has been and still is so desperately needed.