Cancel culture seems, for some time now, to have been affecting who is invited to speak at Universities or who will be employed by them. Many high profile people have been disinvited from speaking to student groups at our institutes of higher education. They appear to come not only from the right wing, but to include many others, particularly those who have not accepted the purist 'trans' line that sex is a social construct.

The government has therefore introduced a Bill (the Higher Education (Freedom of Speech) Bill) which would impose on Universities and other institutes of higher education (and their respective student unions) an obligation to support freedom of speech. This would include making sure that accommodation for meetings on the campus is not denied simply by reason of the opinions to be expressed.

As it happens, flipping between channels, I briefly saw the Educashun Secretary, the Right Honourable Gavin Williamson, at the dispatch box during its second reading. At the time though, I think I had something more pressing to do, like cutting my finger nails. Obviously I should have paid full attention to the no doubt penetrating and subtle analysis of a particularly difficult aspect of our constitution by a former fireplace salesman and also the wisdom of the other similarly well-informed speakers on all sides in the debate.

The difficulty with imposing a right is that it not only has to be defined positively, but also provided with limits. All very difficult without subscribing to the passing fads of society. The Human Rights Act has quite a good go at it:

1    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2    The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

But if we are to have enforceable rights then, at the least, that very enforceability should not become a gravy-train for members of my former profession. Granted though that the Bill seeks to create a new tort, it is very likely that it will be just that.

In fact, as I understand it, the creation of the new right of action is the main purpose of the intended Act, as we already have legislation which places a statutory duty on the higher education sector to uphold freedom of speech in their institutions ‘as far as is practical within the law’. That dated back to the days of Keith Joseph, the education secretary under Maggie. It’s just that no-one has thought to use that obligation in order to oppose some of the loonier decisions made.

In fairness, many of the really daft decisions have been made by student unions, which are not themselves currently subject to the statutory requirement. This Bill seeks to address that omission.

Of course, the Bill’s other main purpose is to promote the image of the Tories as the party opposed to cancel culture, something they see, quite correctly, as coming from the left in the UK and being very unpopular amongst actual and potential Tory voters. Hence, in part, the decision of the Labour Party to oppose the very idea of the Bill. Unfortunately, however, as we have seen in Poland and Hungary, not to mention China et al, something very similar can also come from other directions.

I think that the best criticism of the Bill came from the Lib-Dem spokesperson:

“The Bill gives students, staff and visiting speakers the right to sue universities and student unions for alleged breaches of free speech, with all the associated costs. That would create an open season for vexatious claims and expensive litigation—and, what is worse, universities would therefore be incentivised to stop holding events on tricky and controversial issues in the first place, for fear of litigation. The Bill would have a chilling effect because, far from protecting free speech, it would stifle it. At the very least, this legislation must include a threshold for harm, as under the Defamation Act 2013, so that that route cannot be abused by individuals or groups who do not have genuine grievances.”

I agree with her proposed solution.

I’m not sure though that the other attacks on the Bill are very convincing. The main reasons put forward by Labour include that holocaust deniers and anti-vaxers would have a field day (also alleged by the Lib-Dems). But this is something which makes little sense. Speech contrary to the ‘fundamental Human Rights Convention values of tolerance, social peace and non-discrimination’ is excluded from the right to ‘freedom of speech’ in the UK ¹ and in any event, banning the promotion of what is pure fiction would itself be lawful. I do wonder at the care and intellectual honesty with which our parliamentarians approach their job.

The other argument used was that there are more worth-while things the government could be legislating for - always a rather weak argument and generally used when they can’t think of something more convincing to say.

Whether the Bill will make it back from the Lords unscathed is open to doubt, and what its final form will be is anyone’s guess. What it will do along the way is provide endless opportunities for our legislators to claim to be the embodiment of our freedoms, while all the time conceding more power to the Executive.


Note:

1.    A useful recent résumée of the law relating to Holocaust denial by the Westminster Magistrates Court:

The Court in R v Chabloz (2018) said that, whether or not material was “grossly offensive” for the purposes of section 127(1) of the Communications Act 2003 was an objective question of fact: DPP v Collins [2006] UKHL 40. In short, would reasonable persons find the material grossly offensive? There was also a mental element: “the appellant is not guilty unless we are also sure either that she intended it to be grossly offensive to Jews, or at the very least was aware that it might be perceived as being grossly offensive to them”. On the matter of free speech, the right under Article 10 ECHR was not unqualified: preventing the use of a public electronic communications network for attacking the reputation and rights of others was legitimate objective and the ECtHR was clear that Article 17 ECHR removed from the protection of Article 10 “speech or other expression which is contrary to the fundamental Convention values of tolerance, social peace and non-discrimination: see Norwood v UK(2004) 40 EHRR SE 11 and M’Bala M’Bala v France No.25239/13”.

Though there was “no crime of Holocaust denial in this jurisdiction, no tribunal of fact is required to proceed on the basis of absurdity or fiction. The Holocaust … happened. World War II is surely the best documented and most extensively studied period of modern history, and the Holocaust is one of the best-documented aspects of that conflict, if not the best. A mass of evidence, of various kinds, attests to it. Moreover the Holocaust has been the subject of extensive judicial enquiry, from the Nuremberg Trials onwards, in a number of jurisdictions”.

The judgment at first instance of Gray J in David Irving’s libel action against Penguin Books Ltd – quoted by the Court of Appeal in Irving v Penguin Books Ltd & Anor [2001] EWCA Civ 1197 at [33] – was particularly pertinent: Gray J had concluded that “no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews”. That conclusion, was sufficient to allow the Court to take judicial notice of the fact that the Holocaust had indeed occurred. (my italics).

Paul Buckingham

23 July 2021