Last Thursday, an anonymous government source commenting in The Times made “no apology” for pausing the commencement of the Higher Education (Freedom of Speech) Act 2023 (HEFSA), describing it as “the Tories’ hate speech charter” and warning that, if brought into force, it would give antisemites and Holocaust deniers “free rein on campuses”.
It is implicit in this rather dramatic framing that the existing legal framework does not allow antisemites and Holocaust deniers free rein on campuses. This much is obviously true. Freedom of speech is not absolute: it ends where what we might call “hate speech” begins. The surge in antisemitism in universities since 7 October provides numerous examples: “Kill Jews” scrawled on a poster at the University of Manchester; swastikas carved into doors at Regent’s Park College; a university rabbi told on Instagram, “I hope you die”.
The law does not demand that universities ignore this sort of abuse. Section 43 of the Education (No 2) Act 1986 requires them to take reasonably practicable steps to secure free speech, but only if that speech is “within the law”. Prohibitions on racism, religious discrimination, harassment, incitement and so on take precedence.
Section 43 is set to be repealed when (or if) the substantive provisions of HEFSA come into force, but it will be replaced by a materially identical duty that will remain subject to the same underlying freedom of expression principles found in article 10 of the European Convention on Human Rights. It is difficult, therefore, to understand how the government’s anonymous source has concluded that HEFSA would usher in a newly permissive environment for antisemitic hate in universities.
No rationale has yet been offered by the government. However, Guy Dabby-Joory, formerly of the Union of Jewish Students, argues that HEFSA would force universities to tolerate speech that is hateful but nonetheless lawful. This ignores the fact that if HEFSA would have this effect, then so should the existing section 43 duty. Either way, the requirement for free speech to be “within the law” is a floor, not a ceiling. It does not equate to a duty to permit all lawful speech in all circumstances.
Holocaust denial – understandably top of Dabby-Joory’s concerns – is not itself unlawful, but it attracts no protection in free speech law. It does not get off article 10’s starting blocks. Universities have no obligation to permit it, and HEFSA would make no difference to that.
Dabby-Joory’s other examples of purportedly hateful but lawful speech are certainly not all unambiguously lawful in any event. Even if they were, HEFSA (or section 43) would allow universities to restrict them proportionately for specific purposes such as to prevent disorder or for the protection of the rights of others or of morals. Context is important: there is a difference between somebody shouting blood libel accusations at students on campus and an academic repeating the same words in a lecture about antisemitism.
And sometimes context is difficult. Clearly, pro-Palestinian sentiment is currently dominant in universities, and it has often mutated into ugly and intolerable antisemitism. But a proportion of it falls somewhere around the blurred and contested line between legitimate criticism of Israel and racism. Political speech has a very high level of article 10 protection, whereas racist speech is usually unlawful, so authorities must somehow discern where that line is drawn.
Many have adopted the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism to aid interpretation. Whatever the advantages or disadvantages of this, HEFSA will not make it any harder than it already is.
Nor would HEFSA force a university to platform a speaker who has a history of bigotry. Careful and rational consideration must already be given to decisions about external speakers, taking into account that article 9 of the convention protects freedom of thought, article 10 gives academic speech the “utmost” protection and the indirect effect of section 12 of the Human Rights Act 1998 is that “particular regard” should be paid to the importance of freedom of speech.
This is as it should be, since blacklisting and knee-jerk cancellations can be based on misplaced assumptions and are inimical to good pedagogy and robust scholarship. Where a controversial speaker is accommodated, appropriate mitigations, controls and opportunities for protest can be implemented so that morality and the rights of others are given proper weight. It is by no means “free rein”, and it would not change under HEFSA.
The only genuinely novel aspect of the duty in HEFSA is that it gives individuals a meaningful right of redress. Section 43 can be enforced only via the unsatisfactory and expensive route of judicial review or by crowbarring it into an equally onerous claim for philosophical belief discrimination under the Equality Act 2010. HEFSA would provide a free Office for Students complaints scheme and a relatively straightforward civil court claim.
Dabby-Joory believes that these enforcement mechanisms would tip the balance, so that universities would not punish hate speech for fear of being sued. But this is nothing less than an argument against access to justice for contraventions of the fundamental human right to free speech.
Some universities have reportedly been lacklustre in such efforts as they have recently made to protect the free speech rights of Jews and supporters of Israel. Many Jews feel that their voices are grievously marginalised.
That is not due to the dormant HEFSA; it is because the current law is a weak deterrent and is not working. In the absence of a realistic prospect of legal enforcement, there is little jeopardy for universities in allowing the loudest voices to predominate.
The right to free speech does not exist to amplify the loudest voices. It exists for the voices that would be silenced without it. And since there is no justice without access to justice, a properly accessible legal right is needed so that the marginalised may freely and safely speak.
HEFSA is not a hate speech charter; it is a free speech charter and a serious and nuanced piece of human rights legislation. It deserves better than to be dismissed with a disparaging political sound bite.
Akua Reindorf KC is a barrister at Cloisters Chambers specialising in employment, discrimination and human rights law. From September, she will be a visiting senior fellow at the London School of Economics Law School, focusing on the law of academic freedom and freedom of speech.