08.06.2023

Knavery and folly

Mike Macnair considers the latest stage in the Tory culture-war campaign for freedom of (only) Conservative speech

Last Thursday (June 1) saw the latest choreographed steps in the Tories’ campaign around ‘no-platforming’ at universities and other higher education institutions. Cambridge academic philosopher Arif Ahmed was announced as ‘director for free speech’ at the Office for Students under the new Higher Education (Freedom of Speech) Act, and gave an interview to The Times which indicated his agenda.

The same day, Kathleen Stock came to speak at the Oxford Union Society, the Conservative Party’s Oxford institution for training future party leaders in dishonest political methods. Stock is an ‘icon’ of cancel culture, having been driven to resign her job at Sussex University in 2021 after a ‘cancel campaign’, including threats of violence. This was predictably a provocation to Oxford student (and some academic) ‘trans rights’ activists, and thus produced not merely protest, but also before the event a campaign to demand withdrawal of the invitation, and on the day an effort to disrupt it by an activist gluing themself to the floor. This could then be given wide prominence in the media as an example of why the HE(FS) Act is necessary.

The exercise is one of knavery on the Tory leadership’s part. The HE(FS)A preserves the existing legal grounds of ‘cancel culture’, and is designed to secure freedom of speech only for those independently wealthy or backed by the state or the Tory Party. The fair words about freedom of speech conceal foul deeds.

“Folly is the cloak of knavery”, as William Blake said (though probably not with the sense I am using here). In this case the Tories’ knavery is cloaked by the folly of both gender-critical feminists, who are lending political support to people who are in the long run their enemies; and leftist and trans rights advocates of no-platforming, who are setting themselves up to be no-platformed by people who have far more power to enforce this than does the left itself.

Free speech tsar

A convenient place to begin is with the ‘director for free speech’, who has been widely characterised in the press as the “free speech tsar”.¹ This concept is a remarkable contradiction in terms. The tsarist regime before 1917 was precisely characterised by an extreme censorship (except when radically weakened in 1905). Suppose that we forget the actual tsarist regime, and imagine that ‘tsar’ means merely a person on whom all authority rests, in order to act decisively and without delay. This concept is still radically antagonistic to freedom of speech: if the ‘tsar’ is to act individually and decisively, what is the point of freedom of speech in this decision process?

Ahmed in fact gave one interview on his appointment, to The Times. The Guardian reports that “The OFS said that, having talked to The Times, Ahmed would not make any further comments to the media until later in the summer” and comments that this is hardly consistent with the idea of a champion of free speech. The Times was once upon a time the UK government “newspaper of record” before it was bought by Rupert Murdoch, but since then has been as unequivocally a Tory paper as the Express, Mail and Telegraph: Murdoch’s temporary support for Blair reflected Blair’s commitment to Thatcherism.

Ahmed’s statement to The Times contains a revealing comment:

The public sector equality duty means institutions must “have due regard” to the need to achieve certain equality aims. They must recognise the desirability of achieving equality aims, but in the context of the importance of free speech and academic freedom. Similarly, the International Holocaust Remembrance Alliance’s working definition is an important tool for understanding how anti-Semitism manifests itself in the 21st century. Adopting it sends a strong signal to students and staff facing anti-Semitism. But it must not restrict legitimate [emphasis added] speech and protest. I will act impartially.²

This is not the language of a philosopher, or of the campaigner who fought to replace Cambridge University administration’s proposal to require “respect” for others’ views with requiring “tolerance” of them.³ Even if Prof Ahmed has entirely written it himself and has done so without advice, it is the language of a legally-advised manager who sees in everything a balancing exercise. It expresses the views of a government whose legislation has left intact section 26 of the Equality Act 2010 - the usual legal basis of ‘cancel culture’. And it is the language of a public official who is committed to defending the massive cancel-culture no-platforming exercise which has been conducted since 2015 in the name of fraudulent allegations of anti-Semitism, without openly admitting the nature of this exercise or its conflict with freedom of political speech.

To oppose the mostly ineffective efforts of the left and trans activists at no-platforming, while maintaining a diplomatic silence about the massive and largely effective campaign of the British state and its auxiliaries, and the conservative press, to no-platform anti-Zionist speech, is not to oppose no-platforming at all, but merely to cast a false veneer of liberalism on what is actually a censorship regime. ‘Free speech tsar’ is thus an entirely appropriate title in all its oxymoronic banality.

Knavery

The ‘free speech tsar’ oxymoron is also an entirely appropriate symbol for the systematic dishonesty of the HE(FS)A. The act is carefully designed to give the appearance of promoting free speech, while actually leaving intact the grounds for Atlanticist and Conservative no-platforming - and its main change, the introduction of civil liability for no-platforming, will only be available to the wealthy and those backed by big money, and will not be available against them.

Sections 1-3 of the new act restate the existing duty of universities and other higher education institutions - created by the Education (No2) Act 1986, section 43 - to “take the steps that … are reasonably practicable …” to secure “free speech within the law”. But what is “free speech within the law”? In the first place we have to consider the ‘public sector equality duty’, mentioned by Prof Ahmed in his Times comment - and section 26 of the Equality Act 2010.

Now in fact it is the Equality Act, section 26, and the public-sector equality duty which is the principal ground given for no-platforming cancellations. Under section 26:

(1) A person (A) harasses another (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of - (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive [emphasis added] environment for B.

And (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account - (a) the perception of B [note that this appears first]; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are - age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

Thus it is sufficient that the conduct - which includes speech - has the effect, whether or not intended or just careless, that it creates an “offensive” environment (whatever “offensive” means). And the first matter to be taken into account is the perception of the person who claims to be harassed. Hence it is the effect of section 26 of the Equality Act 2010 that anti-Zionist speech amounts to harassment of Jews, and that “transphobic” speech amounts to harassment of trans people. Such speech is therefore unlawful.

Now it would be possible for a court to ‘read down’ section 26 under the Human Rights Act 1998: ie, narrow it in some way, on the ground of its plain inconsistency with European Convention on Human Rights, article 10:

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.

To do so, however, would demolish the legal grounds of not merely the no-platforming of ‘transphobic’ speech, but also the no-platforming of anti-Zionist speech. Hence it has not been. Not surprising. When the argument for speech controls from an anti-discrimination approach started in this country with the incitement to racial hatred provisions of the Race Relations Act 1965, one of the early people convicted was the black power advocate, ‘Michael X’. When Canada adopted a variant of the Dworkin-MacKinnon definition of pornography (as being a kind of discrimination against women), one of the first publications prosecuted under the new definition was a lesbian sex magazine (a lesbian-feminist one, not men’s porn about lesbians).

The appendix in the February 2021 consultation paper which was the beginning of HE(FS)A posed the question of speech as harassment, and said that in the government’s view it is only harassment under the Equality Act if it is targeted on a particular individual. But that is not what the section, quoted above, says.

Thus, the argument that there is a lot of speech which is offensive to people, but is not illegalised by the provisions of the Equality Act, is not true. The reality is that in the Equality Act the term ‘harassment’ is defined excessively broadly, because the prior legislation under the Protection from Harassment Act 1997 did require the conduct to be targeted on the person harassed, and in addition required a “course of conduct” involving more than two occasions. This is the background to the fact that late in the Brown administration the Equality Act, generalising discrimination law, included a definition of harassment so broad that it is actually inconsistent with any general freedom of speech.

Secondly, and probably equally important in practice in limiting freedom of speech and association in higher education institutions, is the ‘Prevent duty’ under the Counterterrorism and Security Act 2015. This is a general duty on public institutions of one sort or another to have due regard to the need to prevent people from being drawn into terrorism. It includes universities and other HE institutions, and the governing body of the institution is required to have regard to guidance issued by the home secretary when carrying out the duty and so on. Before the present act, it was possible to argue that the ‘Prevent duty’ did not impliedly repeal the duty to secure freedom of speech under section 43 of the Education No 2 Act 1986. But paragraphs 14‑17 of the schedule to HE(FS)A now make provisions which make clear that freedom of speech is merely a consideration in the context of the ‘Prevent duty’.

Other forms of speech, not mentioned in the 2021 consultation paper, are also ‘outside the law’. Defamation, for example, is unlawful. But what is defamation? Until Robert Maxwell fell off the back of a boat, saying that “Robert Maxwell is a crook” was defamation - and there are a whole raft of other examples of the use of ‘gagging injunctions’ adopted by people and firms wealthy enough to afford defamation litigation to prevent speech. Speech or publication which is in contempt of court is also ‘outside the law’ - so not merely in the case of ‘gagging injunctions’, but also violation of the courts’ indefensible extensions of rights to non-reporting of judicial proceedings. Equally, contempt has been used to silence those who seek to rely on Bushell’s Case (1670) and the very long-standing right of jurors to refuse to follow judges’ moral judgments.⁴

Or, under the Treason Felony Act 1848, section 3, “compassing” the deposition of the monarch, including calling for the abolition of the monarchy, in particular in print, gives rise to liability to imprisonment for life or any lesser term. The Guardian in 2003 attempted to litigate the consistency of this provision with article 10 of the Convention on Human Rights, but the courts refused to rule on the claim on the ground that The Guardian was not immediately being prosecuted under the act.⁵

So “freedom of speech within the law”, is certainly ‘weasel words’: because it does not propose cutting down the over-broad scope of the harassment definition, getting rid of the ‘Prevent duty’, cutting down the courts’ powers to restrict reporting of their proceedings, or making clear that freedom of speech within the law means freedom of speech subject to the risk of being sued for defamation, but that risk of being sued for defamation is not a reason why the institution should shut down public meetings or discussions. So ‘within the law’, without proposals to restore the range of permitted freedom of speech by cutting down the vague limitations on freedom of speech in current law, leaves intact most of the real reasons actually offered for suppressing speech in universities and other HE institutions, and puts the question wholly into the hands of ‘m’learned fiends’ and the deep pockets that pay them. The act therefore only appears to promote freedom of speech in HE, but does not actually do so.

Section 4 of HE(FS)A provides for a civil action (for a ‘tort’, in lawyers’ jargon) for damages or an injunction to lie in favour of people who claim to have suffered loss as a result of a cancellation. ‘Loss’ is defined by section 4 (2) to mean “loss of any kind (pecuniary or nonpecuniary)”. ‘Pecuniary’ losses are out-of-pocket expenses: the organisers of meetings who have been cancelled and have then had to pay money for rooms which they have booked and have lost that money; speakers who have incurred travel costs, and so on. But what are “non-pecuniary” losses? In cases where an accident causes injury, this includes “pain and suffering” and “loss of amenity” - such as disabilities inflicted. It does not include disappointment or distress: these do not count as “loss” in tort. Fairly clearly, what must be meant is reputational damage. Hence the claim, though it is not strictly one, is like a defamation claim (libel).

Selling justice

The background to creating a new civil action is that the courts have previously ruled that section 43 of the 1986 act does not create a civil (tort) liability. This is part of a much more general phenomenon of the courts trying to limit the scope of tort liabilities for ‘breach of statutory duties’. The purpose of this general policy, which started in the later 19th century, is to protect businesses against being liable to compensate workers for breaches of the Factories Acts and later safety legislation, or neighbours in relation to “statutory nuisances” (forms of pollution), or ‘statutory undertakers’ like water companies against liability for failing to maintain a sufficient water pressure for fire brigade use (the original case).⁶ Because there is not a tort liability, the only remedy is judicial review proceedings. There is merely a right to apply for the decision to be quashed by the court - useless after the meeting has been cancelled. So creating a new tort liability is supposed to be beneficial in deterring anti-free speech decisions.

How will a tort liability be enforced? In theory, if it is for a small amount of money, it can be brought in the small claims court, but it is always possible to argue that it raises ‘difficult issues’ which need to go to the high court - or to run up costs by appealing - in spite of the relatively small amounts of money involved. Since these claims almost certainly have to be treated as analogous to defamation claims, they will almost certainly wind up being taken over by specialists in defamation.

The best description of the activity of these specialists is to say that the house of Saxe-Coburg-Gotha/Windsor has since the middle of the 19th century been selling and denying justice in violation of Magna Carta chapter 29, which is one of the few parts of the Magna Carta which has not been repealed: the crown promises that they will not sell or deny justice. Litigants do not personally pay the king, as people used to personally pay King John for expedited treatment, or to stop their opponents’ judicial proceedings. Queen Victoria, Edward VII, George V, Edward VIII, George VI and Elizabeth II (Charles III will presumably continue the policy) have not personally been taking money for selling and denying justice. Rather, they have been franchising the sale and denial of justice to the Bar of England and Wales and the Law Society through the ‘free market in legal services’ - and in particular in relation to defamation claims. The extortionate charges of barristers and solicitors concerned in dealing with defamation claims operate both to price lower-class claimants, and lower-class defendants, out of any right to their day in court.

It is, of course, not just in defamation, but more generally true that usually in litigation ‘deep pockets win’; the research has not been done in this country, but it has in the USA, and it turns out that it is predictable who will win in public nuisance cases in connection with pollution on the basis of who spends more. Out of court, Hazel Genn’s 1987 book Hard bargaining⁷ demonstrated empirically that tort claimants in relation to industrial and road traffic accidents usually wind up settling for much less than the law says they should get for their injuries, because the ability of the defendant insurance companies to exhaust the resources of the claimant’s lawyers is so effective. Again, Vince Cable’s wizard wheeze choked off most employment tribunal applications by pushing the fees up so that people could not afford them - to the point that finally the UK Supreme Court struck it down as being an abuse of the power to set fees.⁸

So the new tort liability under section 4 will be under the control of this mechanism. Indeed, the ability to use ‘scorched earth litigation tactics’ in this field will be accentuated by the fact that, before suing for damages, the claimant will have to exhaust both the institution’s internal complaints procedure and a new complaints procedure to be run by the Office for Students. In the absence of any limit on the use of lawyers in these procedures, more costs can be run up in this process.

Tort liability as such is necessarily controlled by this mechanism of the use of legal fees to choke off or facilitate access to justice. This was also apparent in relation to the Labour Party’s disciplinary proceedings in the campaign of defamation using ‘anti-Semitism’ allegations: the litigation brought by supporters of the witch-hunt was heard very rapidly and involved very substantial sums of money spent on litigation. The people who were penalised, on the other hand, had much smaller resources and any legal proceedings they brought were more delayed.

St Peter’s College in 2021 saw off an attempt to no-platform Ken Loach, but how many universities will be able to do that? And, if it came to litigation with someone backed by the government (as the ‘anti-Semitism’ no-platform advocates are), would the institution be allowed to spend the money to litigate? Christ Church College, which is one of the richer colleges in Oxford University, has seen a conflict between the dean, the head of the college, on the one side, and the governing body, on the other side. The Charity Commission intervened to query whether the governing body might have inappropriately spent the college’s money on litigating with the dean, suggesting that that expenditure might be a breach of trust. Suppose that the Board of Deputies, who backed the campaign to no-platform Ken Loach at St Peter’s, had actually funded litigation on the basis of the Equality Act, section 26: might the Charity Commission not have said to the college that ‘It’s your duty as charity trustees to roll over and comply with the demands rather than waste money on legal costs’?

In short, the tort remedy under the HE(FS)A will by its nature secure the right of Tories, the wealthy, and those bankrolled by these or by US lobby groups not to be cancelled - and to continue to cancel others. There can be no actual fight for free speech within this framework.

This choreographed culture war has as its long-term aim to secure full control of permissible speech by the Conservative Party, its donors, the advertising-funded media and, more generally, the wealthy. Immediately targeted are a minority - trans people - who are politically vulnerable because they are a small minority, and because they have ‘set themselves up’ by asserting the ‘gender recognition’ paradigm political line that ‘A trans woman is a woman; a trans man is a man’, and by attempting to no-platform those who disagree with this political line. But for the Tories, trans people are only the immediate target.

In this context, the Tories’ knavery is cloaked by two sorts of folly. The first is that of ‘gender-critical feminists’, like Kathleen Stock, who have allowed themselves to be used as provocateurs and as the Tories’ ‘entering wedge’.

That this is folly is visible immediately in the nature of the Tory press campaign round the Scots Gender Recognition reform bill. As I discussed back in January, ‘gender-critical feminists’ may be tempted to treat the Scots trans prisoners issue as an ‘I told you so’. They should pause to think that the press technique used in these stories is identical to the Tory press giving excessive prominence to the microscopic numbers of false allegations of rape, with a view to spreading the idea among lawyers and jurors that such false allegations are much more common than they actually are, and hence making actual convictions of rape extraordinarily difficult. Lending feminist names to a Tory press campaign of this sort is to support one of the fundamental mechanisms of ‘rape impunity’ in modern law.

Second Level

At a second level, the Tory campaign around no-platforming - and the no-platformers themselves - fail to distinguish between protesting against speech you disagree with and attempting to prevent it by cancellations or immediate obstruction. The first is plainly legitimate. Speech control in capitalism works by allowing the capitalist an amplifier - advertising and other corrupt institutions - which can drown out opposing voices. Assembly in as large numbers as possible, petitioning, and so on, are necessary means to resist this drowning-out effect. If the Tories are allowed to smear all protests as no-platforming, they obtain practical control of speech. What will they do with it?

The Tory Party has throughout its history, going right back to the 1680s, been the party of censorship. The very immediate forms of the HE(FS)A show that they want to pose as champions of free speech, while still defending an absolutely immediate exercise in censorship - the no-platforming of anti-Zionists. In this context, ‘gender-critical feminists’, or other free speech campaigners who lend themselves to Tory provocations, are only temporary ‘useful idiots’. Once the Tories’ objective of obtaining control has been achieved, they will be dumped and targeted - as ‘feminazis’ were before they were useful to witch-hunting the trans minority.

Equally folly and equally ‘useful idiots’ for the Tories are the no-platforming efforts of trans rights activists against ‘transphobes’ and the tendency of the left to tail these. Stock’s case is in this exemplary. The suggestion that Stock’s political ideas made Sussex University an unsafe space for trans people is obvious crap. So, too, the suggestion that her speaking at the Oxford Union Society made Oxford an unsafe space for trans people. “Our existence is not a debate” - the slogan chanted by Oxford trans rights campaigners outside Stock’s meeting⁹ - is either meaningless (there is no such debate, since no-one doubts the existence of trans people; they merely doubt that trans people are for all purposes members of the destination sex/gender); or, if “Our existence is not a debate” means that these questions may not be debated, the supporters are demanding not merely minority rights, but minority rule.

But the ‘minority’ which will actually ‘rule’ under any present-day regime of ‘minority rule’ is the capitalists and their chosen bribe-takers. And this, right now, means the supporters of “unchangeable genetic sex”, “traditional gender roles” and (from the ‘national conservatives’) that women should be forced to have more children.¹⁰

What cancel campaigns do is to legitimise state, media and Tory no-platforming. And the efforts of the left to cancel ‘transphobes’ are limited and ineffective, given the massively greater resources of the right and the state. What they legitimise is the right and the state deploying its (vastly greater) resources, to no-platforming the left - as we have seen in the ‘anti-Semitism’ smear campaign.

As Rosa Luxemburg wrote in 1918,

Freedom only for the supporters of the government, only for the members of one party - however numerous they may be - is no freedom at all. Freedom is always and exclusively freedom for the one who thinks differently. Not because of any fanatical concept of ‘justice’, but because all that is instructive, wholesome and purifying in political freedom depends on this essential characteristic, and its effectiveness vanishes when ‘freedom’ becomes a special privilege.¹¹

We - the workers’ movement and the left - desperately need the right to free speech, the right “to receive and impart information and ideas without interference by public authority and regardless of frontiers”: it is necessary to add, ‘without drowning out and no-platforming by advertising-funded media’. We can only possibly hope to achieve this by fighting consistently for freedom of speech for all.

1. Eg, ‘Rishi Sunak to announce first free speech tsar: Cambridge professor Arif Ahmed will be tasked with waging the “war on woke” - with the power to investigate universities that censor academics’ MailOnline May 28; ‘Free-speech tsar Arif Ahmed set to defend all views’ BBC News June 1; ‘England’s “free speech tsar” named in announcement to one newspaper’ The Guardian June 1; ‘New government free speech tsar professor Arif Ahmed says “democracy is at stake” Evening Standard June 1.↩︎

2. ‘Seeking the truth is something worth fighting for’ The Times June 1.↩︎

3. www.varsity.co.uk/news/20334 (December 11 2020).↩︎

4. I Spencer, ‘Defending the right to oppress’ Weekly Worker June 1 (weeklyworker.co.uk/worker/1445/defending-the-right-to-oppress). For more depth on the history of the issue, see TA Green Verdict according to conscience Chicago 1985.↩︎

5. ‘Lords halt challenge to treason law’ The Guardian June 26 2003.↩︎

6. Atkinson v Newcastle Waterworks (1877) 2 Ex. D. 441, the Conservative Lord Chancellor Lord Cairns unusually sitting in the Court of Appeal to rule against the claimants.↩︎

7. H Genn Hard bargaining: out of court settlement in personal injury actions Clarendon Press 1987.↩︎

8. Discussion in M Macnair, ‘Rhetoric and political realities’ Weekly Worker August 3 2017 (weeklyworker.co.uk/worker/1166/rhetoric-and-political-realities).↩︎

9. ‘Oxford students hold trans+ pride march as Kathleen Stock speaks’ Socialist Worker May 31.↩︎

10. R Fortune, ‘The Tories’ natalist nativism’ Anti-Capitalist Resistance May 31.↩︎

11. www.marxists.org/archive/luxemburg/1918/russian-revolution/ch06.htm.↩︎