Julius Grower, Associate Professor of law at the University of Oxford, has published an open letter lambasting recent comments by MP Mark Ferguson on the currently suspended Higher Education (Freedom of Speech) Act 2023, or HEFOSA.
Speaking in the House of Commons last Thursday, Mark Ferguson, the MP for Gateshead Central and Whickham, described HEFOSA as “a charter for Hizb ut-Tahrir [a proscribed terrorist organisation], Holocaust deniers, and vaccine deniers to wander our universities freely”.
Ferguson made these remarks as part of a comment to the Minister of State for School Standards Catherine McKinnell, who was taking questions on the topic of free speech in education. While the Minister did not directly endorse this characterisation, she did not distance herself from it either, noting that such “passionate views” are “why we [the Government] are taking the time to ensure that we get this right”.
However, some people remain more concerned that the Government’s focus on these “passionate views” is leading them towards scrapping a vital piece of legislation. One such person is Dr Julius Grower of St Hugh’s College, Oxford.
On Saturday, Grower published an open letter in the magazine The Critic, addressing each of the concerns raised by Mark Ferguson. First, Grower correctly points out that the Act is not a “Tory charter”, as it enjoyed cross-party support, especially in the House of Lords.
More pressing than whether HEFOSA is a partisan piece of legislation or not, however, is the question whether it facilitates Holocaust denial. This claim is frequently advanced by the Government, and in a recent interview with the Spectator’s Katy Balls, Education Secretary Bridget Phillipson once again cited this concern as one of the main reasons for pausing the Act.
Julius Grower is quite clear, however, that the Act “does not purport to change the scope of the law on what is free to be said in English and Welsh universities.” He goes on to stress that “[t]his point was expressly raised a number of times in the House of Lords, and was expressly responded to by the (then) Government. No one has seriously suggested otherwise since.”
Moreover, Grower points out that HEFOSA defines freedom of speech in accordance with Article 10(1) of the European Convention on Human Rights, which is “plainly and uncontrovertibly qualified by Article 10(2) and Article 17.” According to Grower, the courts have interpreted the latter as “specifically excluding Holocaust denial from the right to any legal protection.”
Regarding Ferguson’s assertion that the Act is “a charter for Hizb ut-Tahrir”, Grower notes that the nothing in HEFOSA changes its designation as a terrorist organisation, and that any suggestion to the contrary is “entirely false”. He adds that “supporting their hateful ideology, is a criminal offense. People can go to prison for doing so.”
Indeed, as Grower goes on to point out, Section 1(2) of HEFSA specifically refers to “freedom of speech within the law”. “Even if you are not a lawyer”, he adds, “this should, I’m afraid, have been obvious to you upon even a cursory reading of the legislation.”
On the final point about “vaccine deniers”, Grower remarks he does not “know of any academics who deny the fact that vaccines exist.” Assuming then that Ferguson is referring to people who question the efficacy or safety of vaccines, he correctly points out that such speech is currently legal “both in universities and on the street”, and that any suggestion of changing this would be “irrational and deeply illiberal”. He might have added that the normal career incentives on academics are usually sufficient to deter them from taking up crackpot causes. There is no need for special legislation.
Dr Grower closes his letter by reprimanding Ferguson for not getting “the basic facts right before intervening in debates.” This is a fair criticism of a sitting Member of Parliament. As Grower writes, we need our politicians “to do much better than this.”