Can Hizb ut-Tahrir be banned from campus?

It had been filmed at a side event to a large demonstration organised by the Palestine Solidarity Campaign, said side event widely believed to have been organised by a group called Hizb ut-Tahrir.

It’s important to reflect on for three reasons.

First, because of a row that ensued about the legality of the conduct on the video.

Secondly, because UK university campuses have a history of acting as a recruiting ground for Hizb ut-Tahrir.

And thirdly because of the way in which, in England, the Higher Education (Freedom of Speech) Act may well make curtailing its activities much more difficult than has been possible in the past.

No place for hate

On Tuesday “sources close the Home Secretary” were keen to point out the press that “there can be no place for incitement to hatred or violence” on the UK’s streets – and so ahead of a meeting with Met Police commissioner Mark Rowley, had asserted that his force should “crackdown on anyone breaking the law”.

The problem is that Met had already posted on social media that specialist counterterrorism officers had not identified any offences arising from the clip. In a statement, it said:

The word [jihad] has a number of meanings but we know the public will most commonly associate it with terrorism.

Specialist officers have assessed the video and have not identified any offences arising from the specific clip. We have also sought advice from specialist Crown Prosecution Service lawyers, who have reached the same conclusion.

However, recognising the way language like this will be interpreted by the public and the divisive impact it will have, officers identified the man involved and spoke to him to discourage any repeat of similar chanting.

There’s since been some debate about legal definitions, potential gaps in the law and whether the Police need new powers – and there was a longer summary of the affair on Tuesday’s News Agents podcast that’s worth listening to.

Zoom out, and similar micro-debates have been happening about protests, meetings, chants and other activities on campus all week. The difference for me is who was behind that side protest.

“One Islamic caliphate”

On Friday here I reflected on my own difficulty, over time, in reaching firm conclusions over the conflict in the Middle East – but one aspect of the conflict over which I do have a firm view is Hizb ut-Tahrir.

Ironically, I reached that view over 4 or 5 hours of debate over whether Hizb should be “no platformed” at NUS National Conference back in 2004 – a casette recording of which I was caused to listen to again this evening.

As I pretended to be busy with photocopying in the Wintergardens ice lounge, speakers staged a passionate and powerful debate laying out their opposing cases for freedom from harm and freedom of speech.

After much procedural wrangling and endless points of order, the vote was to ban them – and the majority of delegates in the room, almost certainly naive to the complexities of the conflict until that point, had learned a lot in the process.

Elsewhere on the site freedom of speech expert and historian Evan Smith describes the history of Hizb ut-Tahrir’s emergence on campus, and the debates that had led up to their ban in Blackpool – which tended to focus on allegations of homophobia and antisemitism from groups such as OutRage! and the Union of Jewish Students.

By the time of the NUS debate, Hizb had already softened its image somewhat – and in the latter half of the decade it switched its tactics to creating “front group” societies. These were usually called something innocuous like the “Global Ideas” society as a way of getting speakers, stalls and room bookings on campus that would facilitate recruitment.

Keeping up with it was hard work – but students’ unions were supported to identify the activity, risk assess it on their own terms, and stop it from spreading.

But the justification for doing so was not, at least not directly, about preventing students from being drawn into terrorism or directly antisemitic activity. It was about students collectively determining that it judged the group to be offensive enough to not want it to organise on campus.

It’s important to note that although Hizb is often labelled as “extremist”, Hizb ut-Tahrir is not a jihadist organisation like Al Qaeda:

[It is] a pan-Islamist organisation that began in Jordan in the 1950s, seeking to re-establish the caliphate through armed insurrection or military coup.

It does, however, project a highly conservative version of Islam – and its activities are the sort of thing that some argue provide an environment in which extremism can flourish. But whether that’s enough to actually ban them now is a whole different issue.

In theory, once we’re in “free speech within the law” territory, as long as a belief is deeply held, and doesn’t amount to unlawful harassment, discrimination, hate speech, or the incitement of violence, it’s likely to be protected – particularly if the expression avoids making a judgement about other people. Indeed, the case law suggests that you can have beliefs that others find extremely offensive (and which are free of any discernible facts) and they can still be protected.

And on the extremism angle, even the latest Prevent guidance – which otherwise appears to be concerned with “extremist” ideology – seems to have undergone a rebalancing:

In most cases, we expect that any risks posed by external speakers can be mitigated without shutting down speech.

Denial or deniers?

You may remember when the Westminster government introduced the free speech bill, and universities minister Michelle Donelan had to backtrack on suggesting that holocaust deniers would be allowed on campus.

No.10’s “clarification” was that Holocaust denial would still be banned. Note Holocaust denial, not holocaust deniers. From there on in, very carefully, every time the question was asked, the government used the same formulation.

The problem is that nobody in universities or SUs ticks out external speaker forms that say “yeah I’ll be dabbling in a bit of Holocaust denial, is that ok”. The Holocaust denial, the wider antisemitism and the homophobia tend to come later. After. Subsequently. Once the student has been recruited.

So consider the legal position in 2023. The government still won’t proscribe Hizb ut-Tahrir, partly for reasons of wider geopolitics. The government has also, through the Higher Education (Freedom of Speech) Act, specifically legislated to prevent any SU from denying a group affiliation on the basis of its beliefs or opinions – however offensive.

It has also legislated to prevent an SU from passing on the security costs of an event to a student society, and it is imposing a maximalist view on free speech and a minimalist, technical definition of discrimination and the Prevent duty in both the legislation, rhetoric around it all and through its regulator:

The Public Sector Equality Duty is a duty to ‘have due regard’ to the need to achieve the aims set out. It is not a duty to achieve those aims… although they must recognise the desirability of achieving the aims set out, they must do so in the context of the importance of free speech and academic freedom.

It is also important to draw out the framing of the Prevent duty; it is a duty to have ‘due regard to’ the need to prevent people from being drawn into terrorism. It is not a duty to achieve the aim of preventing people from being drawn into terrorism. Relevant legislation specifically states that, in complying with the Prevent duty, universities and colleges must have ‘particular regard’ to the duty to ensure freedom of speech and to the importance of academic freedom.

TL;DR? You lot ban things too often. Stop using your own woke judgement to ban things. Only ban things that are against the law.

This does remind us that the free speech duties are tempered by “reasonably practicable” balancing duties, including the Human Rights Act and the Equality Act 2010. But not only are they now are a weak weight on the see-saw in that framing above – they also don’t apply to SUs.

So it should also remind us that given SUs are not public authorities, they are not directly required to comply with the s.43 Equality Act duty, and nor are they directly subject to the statutory duty to have due regard to the need to prevent people from being drawn into terrorism. Apart from some flimsy charity law stuff, the see-saw for SUs is tipped at a sharp angle towards free speech.

Free speech within the law

It all amounts to this. One the free speech act duties come into force, if Hizb ut-Tahrir pitched up on campus to the SU activities office and found 15 students to sign the form, an SU would now appear to be under a direct legal duty to affiliate them, book them rooms, allocate a freshers fair stand, fund security for those events and watch on as they recruit students with impunity – where previously they were able to shut them down.

And it’s not clear the university could step in now either – although if it could, it makes the need for joint free speech codes between the university and SU even more important.

In the early stages of discussion on the Bill, I did raise all of this directly with DfE staff. I got nothing back.

And so we’re now not far away from an SU having to send letters to its staff that say “…we need to make some staff redundant – we blew the budget on security at Hizb ut-Tahrir speaker events”, all while Braverman and her ilk suggest that there is clarity when there is anything but.

Given the weight of the free speech act will be all about free speech within the law, it is instead hard to see a scenario where an SU or a university will be able to get away with restricting their recruitment at all.

On Thursday, it was reported to Parliament that the King had given Royal Assent to the Worker Protection (Amendment of Equality Act 2010) Bill – to place a duty on employers to take all reasonable steps to prevent harassment.

How ironic, then, that in its Free Speech Act, the government has created a direct duty to facilitate recruitment into groups that will spread and cause harassment amongst students and others – and all to shore up a few votes from its socially conservative base.

The act should be repealed – now.