The contradictory cakeism over free speech and extremism continues

The government has published an “updated, more focused” definition of extremism, following Rishi Sunak’s Friday evening address on “extremist disruption”.

It says that the new definition is designed to respond to an “increased extremist threat since October 7 terror attacks in Israel” – although points out that the definition is not statutory and has no effect on the existing criminal law, and (only) applies to the operations of government itself.

Until now, individuals or groups have only been defined as extremist if they show:

…vocal or active opposition to British fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs.”

Now that has changed to “the promotion or advancement of an ideology based on intolerance, hatred or violence” that aims to “negate or destroy the fundamental rights and freedoms of others” or “undermines, overturns or replaces the UK’s system of liberal parliamentary democracy and democratic rights”. Also included are individuals or groups who “intentionally create a permissive environment for others” to achieve the above”.

In the Commons, Michael Gove said the British National Socialist Movement and Patriotic Alternative would see their activities assessed against the new definition, along with the Muslim Association of Britain, Cage and Muslim Engagement and Development (MEND) because they give rise to concern for their “Islamist orientation and views”.

A new unit is being set up within the Department for Levelling Up, Housing and Communities (DLHUC) to oversee the new definition, and “counter-extremism academics” are to be recruited to work with departmental officials to identify individuals or groups that meet the new definition.

Meanwhile, in an echo of the approach the government has taken to the National Union Students (NUS) over antisemitism concerns since May 2022, ministerial departments and arms-length bodies are to take part in a scheme under which those identified individuals or groups will be excluded from meetings or engagement with ministers, senior civil servants, government advisory boards and funding.

To address concerns over free speech, it says that the “definition is clear” that extremism involves advancing or promoting an ideology based on violence, hatred or intolerance, a “high bar” that only captures the most concerning of activities:

It is not about silencing those with private and peaceful beliefs – nor will it affect free speech, which will always be protected.

So are there implications for universities (and by extension their SUs), particularly in England?

Contextual factors

Let’s take the phrase “from the river to the sea” – itself a source of considerable university and SU casework this academic year.

Universities minister Robert Halfon told Times Radio back in October that hearing the phrase being chanted was “horrific” and “scary”, adding:

It’s frightening for Jewish people in England at the moment, you know. I really welcome that the Prime Minister has done everything possible to support those of the Jewish faith, but it is frightening when you hear those chants … when you hear cries of jihad every week in central London.

He went on to say that he said he would be delivering a message to vice chancellors that “you have responsibilities to protect your students”, adding:

The universities have the responsibility to make sure, one, that they are fulfilling [the counter-extremism duty] Prevent. Secondly that they’re acting against racial harassment or intimidation.

On the Today programme, presenter Amol Ragan put the “river to the sea” example to Communities Secretary Michael Gove, asking:

Does chanting from the river to the sea, which some people argue is a legitimate protest song, but many Jews see as a military warrant for their eradication. Does that count as extremism?

Gove said that a single use of a particular phrase “no matter how offensive you or I might think it is” would not count, adding:

What we’re looking at is an ideology, a pattern of behaviour, and a specific set of beliefs and actions… I think it’s important that when we’re dealing in this area that we develop, what we’re seeking to do is to foster the development of a deeper understanding of extremist ideologies.

That is of course another way of saying “it’s about the context”. So Rajan went further, asking whether, if it was used repeatedly and chanted proudly by a group who were projecting that onto Big Ben (“a symbol of our liberal democracy”) would that count as extremism?

Well, it might be and this would be a matter for the police, who are operationally independent, it might be a public order issue. And again, the police make their own determination quite rightly about these things. If this were an act, which were consistent with a pattern of behaviour from an organisation that was promoting a particular ideological point of view, and one could point to the ideology and other actions that will be assessed by the centre of excellence and we would look closely at that before making any decision – but I think it’s important to stress that having a more precise definition, and having this due diligence process is there precisely to ensure that decisions like this are not made on the basis of the subjective judgement of any individual minister. They’re made only after a careful and thoughtful process.

That rather implies that ministers like Halfon rushing to judgement about what a university should or shouldn’t crack down on or define as “extremist” is a problem. Pressed on whether an organised group like the Palestinian Solidarity Campaign projecting it would mean they were extremist, Gove continued:

The key thing … is that it’s not [for me] to take a view – it should only be informed by rigorous effort.

Ministerial expectations

That’s all particularly important because that Sunak speech included the line:

…we will demand that universities stop extremist activity on campus.

But directly contrary to prior press speculation, the DHLUC press notice says that non-central government institutions like arms-length bodies, higher education institutions and independent organisations including the police and CPS will not be obliged to adopt the definition or apply the new engagement principles initially.

That’s interesting – because the strengthened duty on universities in England to “secure freedom of speech within the law” both depends on what is deemed to be lawful and not lawful at any given time, and the precursor phrase “reasonably practicable” is the catch-all “balancing” clause that allows some interference in expression rights in pursuit of other legal duties – like the duty to have a “due regard to the need to prevent individuals from being drawn into terrorism.” The Prevent duty guidance for England and Wales is littered with references to extremism, including a duty to take steps to reduce “permissive environments”.

But if the government isn’t changing the law or the statutory guidance over Prevent, it effectively can tell itself and the country that group X or person Y is “extremist”, all while it leaves universities under a free speech duty to engage and indeed champion their free speech.

It’s even more difficult for students’ unions. Not only are SUs not directly subject to the Counter-Terrorism and Security Act 2015 anyway, SUs as service providers/associations (as opposed to education providers) are not subject to duties covering harassment and victimisation of people based on sexual orientation, or religion or belief.

As such, given the heavy sandbag on the free speech end of the see-saw, it’s difficult to see how on earth they could be expected to play along with this “voluntary scheme” even if the government wanted them to – especially when, unless proscribed, SUs will have a duty to affiliate student versions of groups the government identifies, and even will have to fund the security costs for the speakers they invite to campus.

Put another way, it looks like SUs are under a legal duty to affiliate a PSC society, book its rooms, fund its security costs and even rent it a projector – all while Michael Gove says it’s not for him to define them or the activity as “extremist”, while Robert Halfon condemns universities for allowing it happen.

It would be quite something (although entirely unsurprising) if the government’s legal framework was to require SUs to intentionally create a permissive environment for freedom of speech within the law, only to then expect universities to disengage from them and cut their funding if the creation of that permissive environment involves individuals or groups that government itself identifies as “extremist”. We’re not quite there yet.

The question as to why it might be the case that universities won’t be expected to adopt the definition or apply the new engagement principles (Rishi Sunak having mentioned universities in that Friday afternoon address) almost certainly relates to legal complexity.

Following the employment tribunal judgement that anti-Zionist beliefs are protected under the Equality Act, Robert Halfon said that “there are very serious discussions taking place at the highest levels of government about the result of the tribunal” – and minister for equalities Kemi Badenoch has said that the ruling “does not change the fact that while academics have the right to express views, they cannot behave in a way that amounts to harassment of Jewish students” – which is a description of both ends of the see-saw, rather than a description of where the line is between the two.

Defining antisemitism

So will we ever get any clarity over the see-saw? Maybe – it looks like the ongoing controversy over the applicability of the IHRA definition of antisemitism may be coming to a head.

Universities minister Robert Halfon first promised an antisemitism charter for HE back in November, talking it up into a “seal of quality” in February that will require universities to demonstrate training on antisemitism, effective communication with Jewish students and robust and effective complaints processes.

4️⃣Reiterate in all my discussions that criminal acts should be referred to the police.

5️⃣Explore establishing an antisemitism charter in HE, signing up universities which demonstrate a commitment to tackling antisemitism.

— Robert Halfon MP ➡️Working Hard for Harlow⬅️ (@halfon4harlowMP) November 1, 2023

The tender notice for the project – which will also include a programme of initiatives aimed at tackling antisemitism in schools and colleges – confirmed that it would require a commitment to the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism.

But now a group called the Diaspora Alliance, which has argued that the definition has been used to “repress free speech”, “silence those who campaign against Israel’s government’s actions” and is “really an attempt to create a speech code about Israel”, has issued judicial review proceedings over the scheme and its use of IHRA.

Shirin Marker, one of the Bindmans solicitors representing Diaspora Alliance, says:

The Secretary of State’s decision to centre the IHRA working definition at the heart of its training programme is unlawful in circumstances where no provision is being made for bidders to demonstrate how they will ensure that their training programmes comply with free speech or equality issues. This is particularly important in the academic context, where the law has recognised freedom of expression to be paramount.

And now the Jewish Chronicle reports that, presumably as a result, the Department for Education (DfE) has emailed those who had expressed interest in bidding that the process has been frozen – indefinitely.

The result of that case could have pretty serious implications for those universities and SUs that have adopted IHRA – at DfE’s behest.

So plenty more complexity here over the free speech/harassment see-saw, and in many ways the same old contradictory cakeism over free speech and harassment/extremism that the government keeps getting away with – particularly given that DfE is hesitating over defining antisemitism, and the Office for Students’ response to its consultation on harassment and sexual misconduct remains mysteriously missing.

All further evidence, if it was needed, that the implementation timetable on the Higher Education (Freedom of Speech) Act 2023 and the Office for Students’ new powers under it needs serious examination.