15.02.2024

Unqualified free speech

David Miller’s tribunal case is a personal victory that ought to be celebrated. But, argues Mike Macnair, what is needed is a political victory to advance our rights

Last week we rightly celebrated David Miller’s partial victory at the employment tribunal against Bristol University, and contrasted it with the useless and cowardly official Labour left (‘A culture of apology’, February 8). Rightly, in spite of our sharp political differences with Miller, which we have expressed previously - in particular, his apologetics for the Iranian regime, and his tendency to argue that the Zionist tail wags the US dog.¹ Any result that in the slightest way impedes the state-sponsored smear campaign about ‘anti-Semitism’ is unequivocally to be welcomed.

But it is still necessary to note the limitations of the decision. That is, besides the fact that an appeal may be made to the Employment Appeal Tribunal, then to the Court of Appeal, and from there to the UK Supreme Court - there are still plenty of opportunities for ‘scorched earth litigation tactics’ to exhaust Miller’s resources, or for judges to be leaned on by other elements in the state core to get rid of even this limited victory. The problem is that the decision is grounded on principles that leave intact the opportunities for state-backed Zionist no-platforming/‘cancel culture’.

Religion

The tribunal decision² rests fundamentally on the ruling that “1. The claimant’s anti-Zionist beliefs qualified as a philosophical belief and as a protected characteristic pursuant to section 10 Equality Act 2010 at the material times.”

That is, that anti-Zionism is a religious or philosophical belief, since this section says:

(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

In consequence, by sacking Miller for expressing these beliefs, the University of Bristol directly discriminated against him.

In essence, this is the only ground on which Miller succeeded, and in order to reach this conclusion it was necessary to find that anti-Zionism is not an opinion grounded upon evidence (which would not be protected by section 10), but comparable to unfalsifiable beliefs like Christianity, Islam, Buddhism or atheism. The university argued, in contrast, that anti-Zionism is grounded on evidence and therefore not protected by section 10.

On this point, the tribunal commented that, under the test in the case-law, the belief “must be a belief and not an opinion or viewpoint based on the present state of information available”. As applied to David Miller,

During his evidence the claimant explained that his research into Zionism followed, but helped to reinforce, his beliefs about Zionism. The claimant is and was a committed anti-Zionist and his views on this topic have played a significant role in his life for many years. His views were deeply held and not amenable to change (p51).

It is, therefore, only by virtue of being questionably rational that Miller’s anti-Zionism is protected from employment discrimination.

This is a pretty tortured piece of reasoning. It is made necessary because of the way Miller’s case was posed - as discrimination, rather than as a violation of the university’s duties in relation to free speech and academic freedom - and because the tribunal concluded that everything less than the actual dismissal was justified by the fact that “Preservation of reputation is a legitimate aim which rationally corresponded to an intrusion into the claimant’s rights under article 9 and 10” (p65), and because:

The relationship between academics and students is much more than a transactional one of education provision. Universities and academics provide not only education, but a safe space for young people to explore different viewpoints. To my mind, singling out students and their societies in the way you did was an abuse of the significant power differential between you and students (quoting the dismissal letter in paragraph 299).

‘Safe spaces’ at work!

Contributory

In addition, the tribunal ruled that:

8. In relation to the unfair dismissal claim, the basic and compensatory awards are reduced by 50% in accordance with sections 122(2) and 123(6) respectively of the Employment Rights Act 1996. This is because the claimant’s dismissal was caused or contributed to by his own actions and it is just and equitable to reduce the said awards by 50%.

The alleged ‘contributory fault’ was that:

What the claimant said and wrote about students and university student societies contributed to and played a material part in his dismissal. For the reasons set out above, we find that his conduct in this regard was culpable and blameworthy. Irrespective of the truth or otherwise of such comments, any concerns he had ought to have been pursued via the university’s internal procedures.

The claimant was not in a position of equivalence with the students. There was a significant power differential. The fact that students may have breached confidentiality in relation to internal disciplinary and complaint processes did not give the claimant licence to vent his concerns in the way he did. It is not appropriate for professors publicly to aim aggressive discourse at students or student groups. Although it may not always be the case, in this instance it clearly had an adverse impact on not only the university’s reputation, but also on sections of both the student and academic body.

It was clearly open to the claimant to articulate his views about Zionism without reference to students and university societies. We have no doubt that the claimant was both frustrated and concerned about the continued allegations of anti-Semitism being levelled against him (p96).

This argument amounts, in substance, to the claim that an academic attacked by a student group, which has the backing of the national press, the government and a foreign state, is duty-bound to keep silent and only make complaints to the university administration. Consider the case of a pro-Uighur academic targeted by pro-China protestors in the period when the Cameron government was enthusiastic for better relations with China and concerned to characterise pro-Uighur protests as potentially ‘Islamic extremist’. Would the tribunal, presented with such a case, apply this duty to keep silent? The decision involves clear double standards.

Double standards are, in fact, already apparent in the decision, in the discussion of Bristol University’s radically different treatment of the complaint of Islamophobia made against professor Steven Greer (pp33-37, and pp80-82), which the university rejected, published its rejection, and did not impose confidentiality restrictions on Greer. The tribunal hand-waves away the relevance of this radically different treatment by reference to the different procedures adopted by the university making the cases not comparable. Again an example of refusal to consider the principles of free speech and academic freedom.

August 2023

The tribunal ruled: “There is a 30% chance that, had the claimant still been employed, the respondent would have dismissed him fairly two months after comments the claimant made on social media in August 2023.”

The supposed ground for this ruling was Miller’s August 2023 tweets (issued, it should be noted, after he had been dismissed, following a prolonged campaign for his dismissal):

… the August 2023 tweets were of a different order to the February 2021 comments set out above. The claimant does not suggest any sensible or coherent link to his protected beliefs. Instead of saying Judeophobia was “not a serious problem”, the claimant tweeted that “Jews are not discriminated against”. In his own supplementary witness statement, drafted to deal with these further tweets, he accepted that this was wrong and incorrect. Instead of saying that Jews were “well represented” in positions of cultural, economic and political power, he wrote that they are “overrepresented”. When put next to comments about the absence of discrimination, it is highly likely that “overrepresented” will be interpreted as having negative connotations and that it is somehow problematic.

Ordinance 28 provides that gross misconduct “includes misconduct which in the university’s opinion is likely to prejudice the university’s business or reputation or irreparably damage the working relationship and trust and confidence between the university and the employee”. It is likely that, had the claimant not been dismissed, comments such as these would have led to further concern both within and outside the university (p99).

The original complaints against Miller concerned his teaching. These complaints were thus legitimately connected to the employment relation, though the media was campaigning against academic freedom and freedom of speech and the university, by entertaining these complaints, was arguably in violation of the freedom of speech duties under the Education (No2) Act 1986, section 43. Tweets are, in principle, speech outside the employment relationship. If dismissal is allowed for reputational damage due to conduct outside the employment relationship (falling short of imprisonment for an offence), there can be no freedom of speech and the right employers and landlords used to have (before the secret ballot) to control their employees’ or tenants’ votes, is halfway to being restored.

It is part of the art of the advocate to offer the court, among other options, minimalist grounds for a decision that will allow the court to find in favour of their client without entering major areas of legal or political controversy. This art presupposes that the client is only interested in the practical outcome, not in defending any issue of principle, nor in the adverse consequences that a narrow ruling may have for other people in the same position.

Legal services

This is understandable, given the House of Saxe-Coburg-Gotha-Windsor’s routine sale and denial of justice, in violation of Magna Carta, chapter 29, through allowing the development of the ‘free market in legal services’. The effect is that only government, corporations and the very wealthy can afford to pursue ‘test cases’. This, in turn, has the effect of producing legal creep. Anti-democratic, pro-corruption, or otherwise highly undesirable, legal rules, are gradually insinuated, precedent by precedent, because no-one can afford to challenge them: until the practice has become so extensive that they are unchallengeable because they are ‘long-established’. It was partly in this way that the anti-union laws crept into English law.³ They have now become almost the common sense of the labour movement, with no-one to the right of the revolutionary left prepared to propose going back to the legal position of the 1950s.

Not dissimilarly, ‘safe spaces’, ‘conflicts of rights’ to be managed by quasi-judicial processes, and confidentiality of these processes, have crept not only into the law, but also into the ‘common sense’ of the left. The result, however, was to set up the conditions of the anti-Semitism smear campaign and witch-hunt.

Defending the victimised is a necessary task. But the legal defence run in David Miller’s case before the employment tribunal concedes so much to this regime that it sets up the conditions for other people to be victimised in similar circumstances.

Fighting for unqualified freedom of speech against these conceptions is a fundamental task. For the reasons I have just given, this is a job that cannot be done by leftist legal practitioners or by individual defence campaigns. It needs political action and a party press. Which means, in turn, the need for an actual Communist Party.

1. On Iran, see ‘A year of defiance’ Weekly Worker September 21 2023 (weeklyworker.co.uk/worker/1459/a-year-of-defiance). The previous articles on Miller are: ‘Defend David Miller’, March 18 2021 (weeklyworker.co.uk/worker/1339/defend-david-miller); and ‘Anti-Semitism of useful idiots’, August 31 2023 (weeklyworker.co.uk/worker/1456/anti-semitism-of-useful-idiots).↩︎

2. www.judiciary.uk/judgments/miller-v-university-of-bristol.↩︎

3. See, for example, my article, ‘Free association versus juridification’ Critique Vol 39 (2011), pp53-82.↩︎