The government was right to scrap the Higher Education (Freedom of Speech) Act. Here’s why.

In view of what the minister said, I was very surprised when I reviewed the Higher Education Act, along with the OFS regulatory advice, to discover that certain procedures and protections which are currently in place to protect Jewish students and academics from discrimination and harassment on campus would no longer be available under the new legislation.

I was concerned about what would happen after August 1 2024 when the Act was due to come into force. Our four concerns related to the IHRA definition working definition of antisemitism, Holocaust denial, antisemitism awareness training and disciplinary processes.

We know that the IHRA working definition of antisemitism is very important to the government in the fight against antisemitism and as a result the definition is currently enshrined in universities’ codes of conduct, which allows them to identify criticism of Israel and Jews which is antisemitic.

However, the draft OFS regulatory guidance stated that: “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”.

It therefore appeared that in order to uphold the proposed regulations on freedom of speech, the universities would either have to remove the IHRA definition from their codes of conduct or clarify that antisemitsim is not restricted speech, neither of which is a satisfactory solution.

The removal of the IHRA definition from their codes of conduct would have made a mockery of the government’s decision in 2016 to adopt the IHRA definition. It would also have meant that all other government departments and agencies, the police, law enforcement agencies and local authorities, as well as the general, public would be able to use the definition but not our universities.

The UK is currently the chair of IHRA and if universities were forced to drop the IHRA definition this would have been an acute embarrassment for the current IHRA president, Lord Pickles, and the British government.

Our second concern was Holocaust denial. In one of the parliamentary debates, the then minister Michelle Donelan 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.” Much to our surprise, there was no such clarification on this point about Holocaust denial within the draft regulatory guidance.

It is important to note that as a founding member of IHRA the UK is duty bound to apply both the 2013 IHRA working definition of Holocaust denial and distortion and the 2016 IHRA working definition of antisemitism. Unfortunately there was nothing in the draft regulations to allow the continued use on campus of either of these definitions.

Our third concern related to antisemitism awareness training that universities provide for staff and students. UJS currently provides antisemtism awareness training on campus. However the OFS draft regulations stated that “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.” I interpreted this clause to mean that it would be very difficult, indeed almost impossible, to provide antisemtism awareness training on campus because attendees to training cannot be asked to discuss and identify contemporary antisemitism and that the IHRA definition itself would be considered to be very controversial.

Our fourth concern related to disciplinary processes. I, like many others, was surprised when the OFS included disciplinary procedures in the regulations. The OFS guidance stated that “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.”

This clause clearly 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.

The challenge on campus is to ensure that the Israel-Palestine conflict is debated in a forum where both sides of the argument are heard and questioned. Jewish students who have exercised their right to assembly and freedom of speech have found themselves in recent years having to endure increasing levels of violence, intimidation and discrimination in a toxic climate which excludes pro-Israel students from participating fully in campus life. If the current protections and procedures which I have outlined above for Jewish students were no longer available once the freedom of speech act had come into force, then things would only have got worse.

I outlined my concerns in a letter to Bridget Phillipson within days of her appointment as Education Secretary. The reply I received thanked me for clearly outlining my concerns surrounding freedom of speech and antisemitsim and noted that free speech was being prioritised over the safety and welfare concerns of Jewish groups and other minorities. The letter also stated that the government is committed to protecting Jewish students and continuing to work closely with Jewish organisations to understand what further action is needed.

What more can one expect of our government than that they listened to our concerns and then acted on them?

Dr Ronnie Fraser is Director of the Academic Friends of Israel which has campaigned since 2003 against BDS and antisemitism on campus